Dade Phelan, the Republican speaker of the Texas House of Representatives, sounded mostly triumphant delivering speech at a right-wing think tank in Austin earlier this month. “Eleven-hundred people come here every single day,” the fourth-generation real estate developer told a friendly audience at the Texas Public Policy Foundation as he laid out his party’s objectives in the final weeks of the state’s legislative session.
“They’re voting with their feet,” Phelan said of the newcomers. “They know we’re a conservative state. They know we value the Second Amendment. They know we value life, and they know we value religious liberty.” These people are “fleeing states like California, New Jersey, New York, and Illinois for a very good reason,” the speaker argued, because Texas is “the land of opportunity.”
The news wasn’t all good though. The promise of opportunity had consequences, which would require a stiff response from the state’s residents. “In southeast Texas we care about four things, which is God, the Second Amendment, babies, and the border,” Phelan said. While Texas was doing great in the first three categories, “we have a long way to go on the border.” Luckily, the party has a plan. “Sometime next week,” Phelan vowed, “we are going to file a bill that is, I hope, going to make national headlines and change the conversation on border security, and hopefully take the battle all the way to the Supreme Court and allow Texas to protect its own border.”
By seeking to create a state security force that would include private citizens amassed to “repel” border crossers and do battle with “cartel operatives,” the proposal — House Bill 20 — did make news. If it passes, Texas will field a new unit under its Department of Public Safety to track down, arrest, and deport undocumented people.
Stationed at the border, the unit will be run by a chief serving at the pleasure of the governor, who will oversee a mix of locally recruited law enforcement and ordinary citizens “without a felony conviction.” Unit members will have immunity from criminal prosecution and lawsuits in pursuing their mission to “arrest, detain, and deter individuals crossing the border illegally including with the use of non-deadly force.” They will also “use force to repel, arrest, and detain known transnational cartel operatives in the border region.” Private citizens will be given arrest powers if they are “trained and specifically authorized by the governor.”
Companion legislation in the Texas Senate, if passed, will make undocumented entry into Texas a state crime — with first-time offenders facing a year in prison, second-time offenders facing two, and offenders with a prior felony conviction facing life behind bars. The new unit will exist until at least 2030, at which point Texas lawmakers will decide on its reauthorization. Republicans have called the bill the “Border Protection Unit Act.” Texas Democrats have gone a different direction, dubbing the proposal the “vigilante death squads policy.”
“This dangerous, radical, and unconstitutional proposal which empowers border vigilantes to hunt migrants and racially profile Latinos is going to result in the death of innocent people,” Victoria Neave Criado, the Democratic chair of Mexican American Legislative Caucus, said in a statement last week. “MALC is going to do everything in our power to kill this legislation just as Latino State Representatives for the past 5 decades have fought against Klan-like proposals.”
Aiming for the Supreme Court
By seeking to legalize state-run deportation squads, Texas Republicans have created a dilemma for their ideological foes: accept the existence of the new border unit until at least 2030 or challenge the law and roll the dice with a conservative Supreme Court. The lawmakers clearly like their odds with the high court justices, three of whom were appointed by former President Donald Trump, and have their sights set on undoing one of the most important bodies of borderland precedent in recent history.
Eric Gamino, an assistant professor of criminology and justice studies at California State University, Northridge, grew up in the Rio Grande Valley, the South Texas epicenter of national-level border discourse and ground-level border militarization. For eight years, he was a police officer there. He now researches the way the border policing intersects border life. Gamino sees two important components to the Border Protection Unit Act: the immediate changes that would come to Texas if the bill is passed, and the long game Republicans are playing in angling for a Supreme Court fight.
On its surface, he said, the bill is an escape hatch from a costly and ineffective border blitz. In 2021, Republican Texas Gov. Greg Abbott launched “Operation Lone Star,” a massive state-led effort that has surged thousands of National Guard troops and various law enforcement officials from across the state to the border. In the two years since, the more than $4 billion program has been riddled with scandal — including the deaths of National Guard personnel and allegations of systemic civil rights violations that have led to a Justice Department investigation — while making no discernable impact in slowing the illicit movement of drugs or people across the border.
“It’s a rebranding campaign,” Gamino told The Intercept. “The governor has recognized that Operation Lone Star is ineffective, that it’s a failed operation. They want to send these individuals back home, but they need to replace the bodies — meaning these individuals who are hyper-militarizing the borderlands — they need to replace them with people that have arrest authorities.”
Phelan, the Texas House speaker, made precisely that argument in Austin earlier this month, telling Texas Public Policy Foundation attendees: “We can bring our troopers home. We can bring home our game wardens. We can bring home our National Guard and take the fight to the border ourselves.”
If the bill passes, Gamino expects that most of the Border Protection Unit’s arrest operations will be carried out by locally recruited law enforcement officials, with civilians aiding in surveillance and border wall construction. The inclusion of civilians, which has featured prominently in coverage of the bill, still concerns him. “They might vet these individuals by providing training through DPS,” Gamino said, referring to the state’s Department of Public Safety, “but they know the type of individual that they’re going to attract.” The likelihood for zealous, anti-immigrant recruits is high. Gamino’s deeper concern, however, is the shrewd, and potentially precedent-setting, power play Republicans are making in proposing the bill at all.
“They know that it’s unconstitutional, that it’s bound to get challenged in the courts, and that is what they’re purposely doing,” he said. If the gambit is successful, he said, “It will change the complexity of enforcement on the borderlands for the entire Southwest region.”
Speaker of the House Dade Phelan bangs a gavel in the House chamber at the State Capitol in Austin, Tex., on July 8, 2021.
Photo: Tamir Kalifa/Getty Images
Past and Precedent
In Texas, raising citizen armies against particular populations of people has a dark, not-too-distant history. In the early 20th century, the state was the site of widespread lynchings of Mexicans and Mexican Americans. The work of Monica Mu?oz Martinez, a historian at the University of Texas and author of “The Injustice Never Leaves You: Anti-Mexican Violence in Texas,” examines a particularly bloody period from 1910 to 1920.
“That was a period where you saw the militarization of the border in response to calls to secure the border and to protect Anglo Americans from Mexicans that were profiled as criminals, as dangerous, as a threat to democracy, whether they were American citizens or Mexican nationals,” Mu?oz told The Intercept. “It was this period of what you would call today racial profiling.”
At the time, lawmakers were clamoring — as they are today — for military force against Mexico. The state activated posses that worked with local law enforcement to hunt down purported threats from the borderlands. Historians estimate that thousands of men, women, and children were killed. The specter of vigilante violence returned in the 1970s, when Louis Beam, an infamous white supremacist, built a paramilitary “Klan Border Watch” compound in Texas. Beam trained hundreds of border vigilantes over several years. “When our government officials refuse to enforce the laws of the country,” he said, “we will enforce them ourselves.”
While it was Phelan who teased the Border Protection Unit Act in Austin, the proposal was written by fellow Republican Rep. Matt Schaefer, the founder and chair of the arch-conservative Texas Freedom Caucus. The east Texas lawmaker, who did not respond to an interview request, has dismissed his bill’s alleged reflection of a dark history of racial terror and violence.
“The Texas Border Protection Unit will be an organization of professional men and women hired/trained under the authority of the Dept of Public Safety to protect Texans,” Schaefer tweeted last week. “Many will be licensed peace officers, others trained and specifically authorized by the Governor to make lawful arrests. Exactly as the Nat’l Guard & DPS operate now under Operation Lone Star.”
Schaefer’s bill is part of a wider movement within the GOP. Since losing the White House in 2020, Republicans have made one legal effort after another to wrest control of the border from the federal government by arguing that the Southwest is in the grips of an “invasion” aided and abetted by the president of the United States and his administration. Under these conditions, GOP lawmakers say they are duty-bound to assert unusual wartime powers.
The argument is in part the brainchild of the Center for Renewing America, a right-wing Washington think tank. Populated by former Trump administration officials, including Ken Cuccinelli, Trump’s former acting deputy secretary of the Department of Homeland Security, the group has spent the past two years lobbying hard for a legal theory that challenges broadly accepted constitutional understandings of the separation of powers between the federal government and border states.
In Arizona last year, the Center for Renewing America’s work set in motion former state Attorney General Mark Brnovich’s filing of a legal opinion declaring that the state was being invaded. Arizona Gov. Doug Ducey, who recently left office, used a similar line of reasoning in a lawsuit last fall, which argued that a strip of the border that has belonged to the federal government since before Arizona statehood in fact fell under state jurisdiction. Ducey said a state of emergency meant that he could ignore all federal laws concerning construction on those lands. He then attempted to build a 10-mile border wall of shipping containers in defiance of federal authorities. The project, which is estimated to have cost Arizona taxpayers more than $200 million, was blocked by local community resistance and Ducey agreed to remove the containers in December.
In Texas, Abbott has leaned on the states’ rights invasion argument to justify Operation Lone Star, though he has faced criticism from the Center for Renewing America for not going far enough. Up until now, Abbott has stopped short of authorizing his forces to boot undocumented people out of the country themselves, a critical component needed to trigger the kind of constitutional challenges the nativist Republicans would like to see before the nation’s highest court.
Whether the Center for Renewing America played a role in the creation of Border Protection Unit Act is unclear, and the think tank did not respond to a request for comment. It appears, however, that the most hard-line elements of the Republican Party have finally gotten at least part of what they want: a powerful border state moving forward with a plan to conduct its own immigration arrests and deportations.
They have, in other words, created a constitutional provocation that seemingly cannot be ignored.
The Arizona Case
Ken Paxton, the attorney general of Texas, has been prodigious in his legal war against the Biden administration. With a string Trump-era appointments to the federal bench, his efforts have been effective, so much so, though, that some constitutional law experts have accused the attorney general of “judge shopping.” (Paxton has denied the allegation.) In a state Senate hearing last year, Paxton’s deputy, First Assistant Attorney General Brent Webster, highlighted his office’s “wild success” in suing the White House.
“We have a 93 percent win rate right now against the federal government,” Webster testified. But there was a problem: “Our hands are somewhat tied in what we can legally do in Texas regarding immigration. And that is because of a case called Arizona v. U.S.”
The case is among the most important in the recent history of the border. It stems from a 2010 Arizona law, known as S.B. 1070, that — like the Border Protection Unit Act in Texas — expanded the state-level government’s authority over border and immigration enforcement. The law empowered local officials like former Maricopa County Sheriff Joe Arpaio, who then created a now infamous regime of racial profiling. The backlash to S.B. 1070 fueled massive protests across the country. In 2012, the core components of the law were struck down in a 5-3 Supreme Court decision.
“Our office doesn’t agree with that ruling,” Webster testified to Texas lawmakers last year. “We welcome laws that might allow us to have a new case we could go up on to readdress this issue, because the makeup of the Supreme Court has changed and because the situation has changed.”
As if he weren’t clear enough, Webster spelled it out. “Look at the laws that we can pass to go up and, again, challenge the current precedent regarding Arizona v. U.S.,” he said. “We ask for you guys to consider laws that might enable us to go and challenge that ruling again.”
A year later, nearly to the day, the Border Protection Unit Act was introduced. For Texas Democrats, the bill is a road map to a “show me your papers” police state and a sign of the Republican majority’s posture going into the final weeks of lawmaking. “HB 20 is a tinderbox waiting to explode that will leave this Session in flames,” Rep. Trey Martinez Fischer, chair of the Texas House Democratic Caucus, said last week. “House Republicans have been warned.”
Texas immigration advocates are now in a delicate place. “This bill is the most dangerous proposal we have ever seen on border issues,” Roberto Lopez, of the Texas Civil Rights Project, told Texas Public Radio. But he cautioned that if a legal challenge led to the Supreme Court overturning federal control of immigration policy, the state-led regime that would take its place could be more dangerous for immigrants. “We need to make that very challenging and difficult decision on whether or not we want to risk upsetting or removing prior precedent that was beneficial to our communities.”
It’s a no-win situation, said Gamino, the border cop-turned-researcher. The Border Protection Unit Act would be bad in practice, he argued, and it would be the law of the land for several years at least. A Supreme Court decision upholding its legality, paving the way for its replication across the border, would be even worse.
“When you look at Arizona and you look at the decision that was handed down, that was 5-3. And now you look at the makeup of the Supreme Court, where it’s a conservative majority, who’s not to say that they will side with the state of Texas?” Gamino asked. “I’m not trying to minimize the concerns of the greater public with regards to what’s going to happen with this Border Protection Unit, but I think what should raise concern is the ultimate goal of these politicians.”
“You can’t play to their hand,” he said, “because if the Supreme Court sides with the state of Texas, it’s not going to be pretty.”
Republican lawmakers want to challenge the federal government at the Supreme Court.