Amid growing immigration concerns in the U.S., some states are hoping to have more of a say in how they are able to handle immigration-related issues via state-based legislation.
For example, in November 2023, Texas passed a bill, Senate Bill 4 (SB 4), that would allow police, sheriff’s deputies and state troopers to arrest individuals suspected of illegally crossing into the U.S. While the legislation passed and was set to go into effect on March 5, 2024, it is currently held up in an appeals court and has not been enacted yet. The bill received support from conservatives, including the state’s governor, who have criticized the federal government for a seeming lack of action on the increase in border crossings.
“Biden’s deliberate inaction has left Texas to fend for itself,” Texas Governor Greg Abbott said at a bill-signing event in late 2023. If enacted, the new law would make it a Class B misdemeanor to cross the border illegally, punishable by up to six months in jail for a first-time offender. The law would also not only allow for Texas state officials to arrest migrants but for state judges to issue deportation orders. Opponents of the bill argue that it could lead to racial profiling and potential mistreatment of migrants and, at its core, is unconstitutional given that immigration matters fall under federal jurisdiction.
“These measures not only threaten the safety and dignity of asylum seekers but also risk undermining the foundational principles of our legal system,” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a nonprofit that helps refugees settle in the U.S., told the Texas Tribune. “Immigration is clearly a federal authority, and this legislation knowingly dances on the edge of constitutional cliffs at the expense of vulnerable children and families.”
A group of immigration judges, who served under both Republican and Democratic administrations, also spoke out about the law in a public statement posted by the Immigrant Legal Resource Center. “The proposed Texas legislation, which would allow a state court magistrate judge to issue a removal order, is not lawful,” they wrote. “Immigration is plainly a federal function. State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation. State magistrate judges cannot conduct immigration proceedings for the same reason that federal immigration judges cannot adjudicate Texas state criminal cases.”
The letter also emphasized the point that migrants, who are in the U.S. legally or illegally, have a right to certain protections under the law and a right to seek asylum. Lawmakers also tried to intervene. Rep. Joaquin Castro (D-Texas) sent a letter, which was signed by other Democratic members of Congress, to the U.S. Department of Justice, asking the agency to sue the state of Texas to stop the law from going into effect. “We urge you to assert your authority over federal immigration and foreign policy and pursue legal action, as appropriate, to stop this unconstitutional and dangerous legislation from going into effect,” the letter states.
“SB 4 is dangerous for the people of Texas and interferes with the federal government’s exclusive authority over immigration and foreign affairs. SB 4 also potentially impedes on due process and civil rights everyone in the United States is entitled to, regardless of the color of their skin or suspected immigration status.” By mid-March, the U.S. Supreme Court ruled in a 6-3 decision to allow the Texas law to go into effect. However, as of late March, the 5th U.S. Circuit Court of Appeals voted to block SB 4 until it can decide whether the law violates the U.S. Constitution given the fact that immigration matters are typically handled by the federal government.
The federal circuit court voted 2-1 in favor of blocking the law. Chief Judge Priscilla Richman wrote that “it is unlikely that Texas can step into the shoes of the national sovereign under our Constitution and laws” and later added that “the Texas removal provisions bestow powers upon itself that are likely reserved to the United States.” In a dissent to the decision, Judge Andrew Oldham wrote that he would have let Texas enforce the law so that it could better manage the influx of migrants.
“The state is forever helpless: Texas can do nothing because Congress apparently did everything, yet federal non-enforcement means Congress’s everything is nothing,” Oldham wrote. The issue awaits final decision from the federal circuit court and could face further challenge down the road.
For more background, see the March 2024 issue of Congressional Digest on “Immigration Reform.”
