Texas’ Controversial Immigration Law Would Be a Train Wreck—and Not Just for Immigrants

After a couple of years of pushing the envelope on state-level immigration enforcement, with the disastrous Operation Lone Star and its offshoots, Texas last year decided to go all in on Senate Bill 4, the law that would make it a state crime to enter the country illegally or to reenter the country (and the state) after a removal. Most absurdly, S.B. 4 grants the state itself the power to conduct removals to Mexico.

After a false start in which the Supreme Court briefly cleared the path for the law’s implementation in March, it has been blocked by the 5th Circuit as litigation continues. Yet, even in its unrealized form, the bill has spurred copycats across the country, as far afield as completely landlocked Iowa. Oklahoma has now enacted its own version, and another has been passed by legislators in Louisiana. States like Georgia and Tennessee are considering measures a bit short of full local immigration enforcement.

If you’re getting vague déjà vu here, it might be because this type of thing was already attempted and decisively struck down by SCOTUS in its 2012 decision in Arizona v. United States, after that state passed its now-infamous S.B. 1070. In fact, the court has continuously held that immigration regulation and enforcement is a pure federal function stemming from the government’s plenary powers on foreign relations and interstate commerce since the late 19th century. By all rights, this should be open and shut: States cannot legally make or enforce their own immigration policies. But the 5th Circuit, stacked with Trump-appointed conservative ideologues, has been tacking hard right in recent years, delivering a string of precedent-upending red-meat decisions. SCOTUS itself, it goes without saying, has not been a friend to precedent in its current iteration.

Does that make it likely that the courts will side with Texas? It might be a bridge too far, and even state Solicitor General Aaron Nielson admitted in court that in trying to go “up to the line” of legality, “maybe Texas went too far,” particularly on the issue of removals. However, it’s at least plausible that either the whole bill or portions of it might be allowed to go into effect, along with the domino of other states’ passed or advancing bills, setting up an unprecedented system that even state officials don’t seem to know how to handle.

In legislative arguments and in arguments before the courts, GOP legislators who pushed S.B. 4 and the state officials defending it have generally attempted to represent its impact narrowly, as something that would predominantly apply to recent border arrivals; vilifying them, you’ll notice, is now standard-issue Republican dogma. Yet, like recent state laws on culture-war issues ranging from curriculum censorship to abortion, S.B. 4 and its copycat bills rely on a certain vagueness not as a defect but as a surreptitious selling point.

Nothing in the plain text of S.B. 4 limits the application of the law to people who have just crossed the border, nor does it technically limit it to people in the country unlawfully. The illegal-reentry part of the statute creates an offense for noncitizens who enter the state after they’ve been “denied admission to or excluded, deported, or removed from the United States.” Iowa’s law contains similar language.

As American Immigration Council Policy Director Aaron Reichlin-Melnick told me, this could snare tons of people who might at some point have been denied a visa or even been ordered removed but have since obtained legal status. “[Potentially] a green card holder, a student visa holder, or someone with temporary protected status who is inside the United States and crosses the Texas border from Oklahoma to Texas, or New Mexico to Texas, is committing a felony under Texas law, even if they are 100 percent legally in the United States,” he said.

Even if Texas attempted to apply the law only to recent entrants, there’s a practical issue here: How can you tell? Unless an officer literally watches someone unlawfully enter the country or someone volunteers that information, it’s inherently an unobservable offense. The truth is, we know what most law enforcement would probably construe as “probable cause” here, but that’s unconstitutional. (Though it’s not as unconstitutional as you might think; in its 1975 decision in United States v. Brignoni-Ponce, the Supreme Court ruled that “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor” in allowing Border Patrol to stop someone.)

There certainly are some robust immigration-related information-sharing programs between states and the federal government, but they’re structured to go in the other direction: State criminal justice data feeds into federal law-enforcement databases, not really the other way around. Some local law-enforcement officials are effectively deputized to act as immigration agents under a federal program known as 287(g), but that’s currently active only in detention settings, i.e., after someone has already been arrested for something unrelated and is tightly controlled. Any given cop on the street will be unable to confirm if an offense has been committed, a fact that Texas’ Department of Public Safety and local law-enforcement agencies have laid bare with constant waffling on how S.B. 4 would even be enforced if active. (DPS did not respond to questions about its preparations or guidance for officers ahead of a potential S.B. 4 implementation.)

The uncertainty over enforcement extends to the prosecutorial and judicial parts of the process. How will prosecutors prove that the offense was committed? How will local judges with no immigration expertise weigh the evidence? “The laws are not well written. They don’t really contemplate the step-by-step of what officers and judges have to do to determine a person’s immigration status without grossly violating that person’s rights in the interim,” said Huey Fischer García, a staff attorney with the Southern Poverty Law Center’s Immigrant Justice litigation team out of New Orleans. “Immigration law is so nuanced and technical. Determination of whether somebody gets to lawfully continue residing in the United States requires multiple hearings and arguments pursuant to the [Immigration and Nationality Act] and other laws that the [state] judges frankly aren’t equipped to make determinations about.”

Of course, the reason state judges would have these problems is that they have never had to bother with any of this federal law anyway. That only highlights how, under S.B. 4, the state judicial system wouldn’t supplement the federal one but would necessarily conflict with it. For instance, the bill would allow people to avoid criminal prosecution if they agreed to leave the country, a detail that suggests that the legislation’s main objective isn’t to convict people but to force them to leave under threat of prison. “You would have a situation in laws like S.B. 4 where you have the federal government telling a person, ‘You have a right to stay here. We’re going to put you through [an asylum process]. That’s perfectly OK with us’ … and you would have Texas saying, ‘If you don’t leave, we’re gonna throw you in prison for 20 years,’ ” Reichlin-Melnick said.

Texas Gov. Greg Abbott’s border-enforcement cosplay, including setting up buoys along the Rio Grande, already nearly set off international diplomatic incidents with Mexico. An attempt to actually remove people—including many non-Mexicans—to that country would probably trigger an even more acute crisis. In response to questions about its engagement with Texas and other states on these laws, a spokesperson for the Mexican foreign ministry pointed to materials from Foreign Secretary Alicia Bárcena’s recent tour of Texas, including her reaffirmation that “Mexico would not accept repatriations by the State of Texas under any circumstances.”

To complete the trifecta after interfering with national and international functions, laws like S.B. 4 would probably also hamstring some state objectives. “[Consider] a child living with a mother who’s undocumented, and she’s a victim of domestic violence actively seeking a safer home for her and her son. If she’s stopped by a police officer and then removed, that son would automatically stay in a house of violence,” said Linda Corchado, senior director of immigration at the Texas-based research and advocacy center Children at Risk. The state crime of having entered the country illegallyas written under S.B. 4 has no built-in defense for people who otherwise have particular vulnerabilities—or who might otherwise help law enforcement, for that matter.

“There might be an attempt at actually locking people up for being undocumented. If that occurs, even just once, I think that would have a very chilling effect across the community,” said the SPLC’s Fischer García. “These laws make folks more hesitant to interact with law enforcement if folks in the community are victims of a crime or witnesses of a crime.” Already, with the law not even having gone into effect, undocumented immigrants in Texas are considering leaving areas near the border and otherwise avoiding contact with the authorities.

Lest some immigration advocates hope that a ruling for Texas would mean that states would then be liberated to establish their own state-level regimes in the other direction by, say, issuing visas, that would still be off the table. “Anything that the Supreme Court said here would really be about the world of [immigration law] enforcement because enforcement and benefits are categorically different,” said Reichlin-Melnick. Essentially, the part of the law that grants immigration status is different from the part of the law that spells out how to contend with those who do not have it, and the former is generally much less flexible.

So, if S.B. 4 and its ilk are allowed to stand, we will end up with a set of systems that no state official seems to know how to implement, probably relying on open discrimination, and that would conflict with international diplomacy, federal law, interstate dynamics—functionally making simply crossing from one state to another a felony—and interstate objectives, all in order to somewhat duplicate federal purposes while violating both national and international law.

This would be, to put it mildly, a complete train wreck. GOP-controlled states see that and are running full speed ahead. Now the courts stand at the brakes, and it’s not looking great.