Texas’s Middle Finger to the Federal Government—and the Constitution

Say what you will about Texas lawmakers, but they are an innovative bunch. Two years ago, they managed to end legal abortion—even before the Supreme Court overturned Roe v. Wade—by passing an abortion-bounty law that was enforced through civil lawsuits. Now their latest burst of creativity is in the sphere of immigration.

Earlier this week, Texas Governor Greg Abbott signed into law Senate Bill 4, which effectively creates an ersatz immigration system for the state of Texas, allowing state law enforcement agencies to arrest and deport undocumented immigrants within the state’s borders. Texas leaders said the bill is necessary because the federal government isn’t taking action.

“President Biden’s deliberate inaction has left Texas to fend for itself,” Abbott said during a signing ceremony on Monday. “Today, I will sign three laws to better protect Texas—and America—from President Biden’s border neglect. These laws will help stop the tidal wave of illegal entry into Texas, add additional funding to build more border wall, and crack down on human smuggling.”

This audacious plan faces one small obstacle: the U.S. Constitution. Under Article I, power over immigration and naturalization is the responsibility of the federal government, not the states. The government has duly created a complex series of immigration agencies, courts, and policies to carry out those laws. Under the supremacy clause, those laws are superior to any state laws that try to usurp the federal government’s immigration powers.

To that end, the ACLU of Texas filed a lawsuit in federal court on Tuesday to strike down S.B. 4 on behalf of a coalition of immigrant rights groups as well as El Paso County, one of the country’s largest border counties. The plaintiffs argued that S.B. 4, if enforced, would disrupt their ability to help migrants and asylum-seekers obtain lawful status in the federal immigration system. The county additionally argues that S.B. 4 will impose serious financial and staffing burdens on law enforcement.

“Under this novel system, the State of Texas has created its own immigration entry and re-entry crimes; state police arrest noncitizens for alleged violations of these crimes; state prosecutors bring charges in state courts; state judges order deportation; and state officers carry out those orders,” the ACLU said in its complaint. “The federal government has no role in, and no control over, Texas’s scheme.”

Texas has taken other aggressive steps to make the state more hostile to undocumented immigrants. One of its most well-known practices is busing or flying newly arrived migrants and asylum-seekers to major cities like New York, Chicago, and Washington, D.C. In recent years, Abbott has also deployed the state national guard and other law enforcement agencies to the border in a show of force and sought to erect new physical barriers to deter crossings.

Some of those efforts have received tentative approval from the federal courts, at least for now. The Fifth Circuit Court of Appeals, which is known for its conservative rulings, issued an order this week to block the Biden administration from cutting through a concertina-wire barrier that state officials had placed along the Rio Grande (an exception was made for emergencies, like providing medical aid to an ill or  injured migrant). That order will keep the barrier intact while litigation unfolds.

At the same time, some of Texas’s tactics have drawn widespread criticism and judicial rebukes. The Justice Department sued the state to remove a series of orange river buoys, some of which are coated in blades, across a portion of the Rio Grande where crossings are frequent. The Biden administration argued that the buoys’ presence violated federal laws that governed navigable waterways. Humanitarian groups also criticized them after at least two drowned bodies were discovered near them in recent months. A Fifth Circuit panel ordered their removal earlier this month.

Creating a state-level deportation system and new criminal offenses for illegal entry is a major escalation of that trend, at least from a constitutional perspective. Texas does not try to duplicate all of the federal government’s immigration powers: It doesn’t (and can’t) create a system to grant visas or authorize legal entry in the state, nor does it try to establish a process for naturalization. But the courts have historically refused to allow states to supersede federal immigration laws and policies with their own.

In 2010, Arizona enacted a law known as Senate Bill 1070 that allowed its state law enforcement officials to carry out certain immigration-related tasks on their own. It criminalized illegal entry, albeit as a misdemeanor, and allowed state and local police to arrest people if they had “probable cause to believe” that they had committed a deportable crime. Critics said the law would lead to racial profiling by requiring police to check a person’s immigration status, and the federal government also sued on supremacy clause grounds.

In its 5–3 ruling in Arizona v. United States, the Supreme Court agreed. Chief Justice John Roberts and Justice Anthony Kennedy joined with three of the court’s four liberals to strike down the law. (Justice Elena Kagan recused herself because she served in the Justice Department during the early stages of litigation.) The court concluded that Arizona’s efforts to enforce immigration law, whatever their policy justifications may be, were unconstitutional because those powers were reserved to the federal government.

“By authorizing state officers to decide whether an alien should be detained for being removable, [S.B. 1070] violates the principle that the removal process is entrusted to the discretion of the federal government,” Kennedy wrote for the court. “A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.”

While the court acknowledged that Arizona had strong objections to how the federal government carried out its enforcement priorities, and it described illegal immigration as a serious policy concern, it also noted that the Constitution’s structure gave that power to the federal government to ensure it could be uniform across the country. Allowing Arizona to deviate from that standard would run counter to that principle, it noted.

“With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse,” Kennedy concluded, with his familiar use of soaring rhetoric in judicial opinions. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”

Texas may have some success in defending its own law before the Fifth Circuit, which tends to favor conservative causes and policy objectives. But it is doubtful that the Supreme Court will be interested in establishing that states can create and enforce their own immigration laws, any more than it would be favorable toward letting states print their own money or open their own embassies. Federalism means that states can’t always get what they want—a pill that is often especially hard for Texas to swallow.