Texas border law plagued by legal doubts

The whiplash created by rapid-fire court orders is sparking alarm over whether a Texas law clearing the way for state and local authorities to carry out immigration enforcement will be allowed to stand.

A whirlwind 24 hours in the courts for S.B. 4, the controversial Texas measure, ended last week with the 5th Circuit Court of Appeals putting the law on ice after the Supreme Court briefly lifted a stay and allowed it to go into effect.

The 5th Circuit now must decide whether to allow the law to take effect while it considers the broader legality of the case. If it upholds the law, it would drastically change the power dynamic in immigration enforcement.

S.B. 4 would allow state and local law enforcement to arrest those suspected of crossing the U.S.-Mexico border, who could then face deportation to Mexico or jail time. 

The law was challenged by the federal government as well as immigrant and civil rights groups.

While the Biden administration has argued the law flies in the face of long-standing precedent giving federal authorities control over immigration, civil rights groups fear the law will encourage targeting of Latinos and others perceived as being migrants.

“The federal law is absolutely clear — it has been absolutely clear since the late 1800s — that immigration policy is the obligation and the responsibility of the federal government,” said César Cuauhtémoc García Hernández, an immigration expert and law professor at Ohio State University.

The Supreme Court has shifted since the court last weighed a similar bill, and Texas, he says, is hoping new justices mean “new outcomes.”

Texas has lost recent Supreme Court battles in which it tried to usurp federal authorities, including in a case that allowed the Biden administration to cut razor wire the state has installed along the border.

“Texas has been on a losing streak when it gets to the Supreme Court. But it wins rather regularly at the U.S. Court of Appeals for the 5th Circuit, which has shown itself to be the most right-wing federal appellate court in the United States right now,” García Hernández said.

Like in prior court battles, Texas again suggested its moves are needed to address inaction by the federal government to protect its own border.

“S.B. 4 is a modest but important statute,” Texas Solicitor General Aaron Nielson told the judges during a hearing last week to review the stay.

“It’s modest because it mirrors federal law. It’s important because it helps address what even the president has called a border crisis.”

But that runs counter to guidance from a court that has often determined that the government must speak with one voice on immigration.

“It’s playing chicken on state and federal preemption in immigration law,” said Kathleen Campbell Walker, an immigration attorney and former president of the American Immigration Lawyers Association.

Campbell Walker called immigration “an area of law that is so regulated by the federal government, that that area has basically been ruled off-limits for the state,” given its impact on international relations issues and that it also touches on the Commerce Clause.

But the bill raises other legal and logistical challenges, as well.

The law ignores the rights of migrants to seek asylum, even if they have crossed the border between ports of entry.

“There are conventions that the U.S. is a party to that require that review. Texas is saying, ‘We don’t have to worry about that,’” Campbell Walker said.

And Texas also plans to simply drop migrants at the U.S. southern border, regardless of their country of origin and whether Mexico will accept them.

A blistering statement from the government of Mexico highlights the real world roadblocks Texas will face if it ever gets a chance to implement the law, while noting the Mexican government’s own plans to raise the issue in court.

“Mexico categorically rejects any measure that allows state or local authorities to exercise immigration control, and to arrest and return nationals or foreigners to Mexican territory,” its ministry of foreign affairs said in a statement.

“Mexico reiterates its legitimate right to protect the rights of its nationals in the United States and to determine its own policies regarding entry into its territory. Mexico recognizes the importance of a uniform migration policy and the bilateral efforts with the United States to ensure that migration is safe, orderly and respectful of human rights, and is not affected by state or local legislative decisions. In this regard, Mexico will not accept, under any circumstances, repatriations by the State of Texas.”

Mexico went on to chastise Texas for passing legislation that could “give rise to hostile environments in which the migrant community is exposed to hate speech, discrimination and racial profiling.”

Mexico submitted its own amicus brief with the 5th Circuit, arguing S.B. 4 violated its rights as a sovereign nation as well as the rights of the federal government.

“It’s one thing to ask the Mexican government to accept Mexican citizens. It’s a whole other thing to ask them to clip citizens from any random country in the world. And that’s exactly what S.B. 4 does,” García Hernández said.

“That’s the kind of thing that is very rare, historically, for a country to accept somebody else’s citizen, simply because the United States doesn’t want them in the United States. And that complication is true whether it’s the federal government or state government that’s making the request.”

S.B. 4 carries stiff penalties for those presumed to have crossed the border, including six months in jail or two years or more for a second offense. 

But it’s sparked concern that anyone who can’t immediately prove they are a citizen could be arrested if there’s probable cause they crossed the border.

“We have a plan B, which is to prepare to educate the community, if it becomes a law, on knowing your rights,” said Domingo Garcia, president of the League of United Latin American Citizens.

“You have a right to remain silent and not answer any questions regarding your immigration status. You have the right to a lot; you have the right to an attorney if they want to deport you or want you to sign deportation documents.”

Regardless of how Texas fares in its legal battle, García Hernández said the state has succeeded in one of its goals.

“Even if ultimately, Texas loses the legal fight, they’re very clearly winning the political fight. By busing migrants to big cities controlled by Democrats all over the country, [Republican Texas Gov.] Greg Abbott has really shifted conversation about immigration policy and split Democrats from one another,” he said.

That includes getting some big-city Democratic mayors to criticize Biden, and even shifting “the tone of the rhetoric that is coming from President Biden and as well as the policies that his administration is implementing.”

Rafael Bernal contributed.