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Border & Immigration

Gov. Abbott Is Running His Own Immigration Policy. Is It Legal?

Greg Abbott and Former President Trump in El Paso
Shealah Craighead
/
The Whitehouse
Greg Abbott and former President Trump arriving at El Paso International Airport in 2019.

Over the last few months, Texas Gov. Greg Abbott has pieced together his own shadow immigration policy to arrest thousands of migrants crossing into the country without proper documentation. It’s enforced by state troopers and the National Guard.

Abbott has said he is responding to the high rate of border crossings.

Immigration policy is under the purview of the federal government — not states. So how did the governor amass this power, and is it legal?

There were more than 188,000 attempted crossings from Mexico into the U.S. in June, the highest in a decade.

Texas Gov. Greg Abbott on Wednesday issued an executive order that restricts the transportation of detained migrants under the pretext of stopping the spread of COVID-19, something immigrant rights activists describe as unconstitutional and fascist.

The high rates of border crossings have allowed Abbott to launch his own brand of immigration enforcement — which sounds a lot like someone else’s brand.

“I will announce next week the plan for the State of Texas to begin building the border wall in the State of Texas,” Abbott said in mid-June.

He has made clear that he thinks the federal government was doing a better job of securing the border under President Donald Trump, so he had Texas step in earlier this year to bolster the response.

cardenas_border_wall.jpg

Since October 2020, the southern border region has seen a higher number of attempted border crossings. Those numbers have continued to grow. Some Republican-led counties along the border declared local disasters in late April, claiming they were being overrun, and they requested additional state law enforcement.

For years the parts of the border region have seen increased high-speed chases of human smugglers. Counties have heard increased complaints of trespassing and other low-level crimes attributed to people illegally crossing.

Critics questioned the validity of some of the declarations when identical ones were made in counties hundreds of miles from the border. Goliad County claimed residents were being threatened with violence, robbed and suffered “vast amounts of property damage,” but then provided scant examples. Atascosa County made a disaster declaration and then admitted there were “no known issues,” despite making the same claims of violence and crime.

Abbott sent 1,000 state troopers to the border in March with some National Guard forces. It was called Operation Lone Star, and according to the governor’s office, it was meant “to deny Mexican Cartels and other smugglers the ability to move drugs and people into Texas.”

The Department of Public Safety made 1,500 arrests in about three months, but the overwhelming majority of people they dealt with (about 96%) were referred to Customs and Border Protection for illegal crossing.

These kinds of operations aren’t without precedent. In 2006, Gov. Rick Perry funneled money from anti-drug task forces to border sheriff’s offices to create a “second line of defense” and expand patrol capacity on the border. It was called Operation Linebacker. Perry sent 1,000 National Guard to the region in 2014 to deal with the first influx of Central American migrants by supporting an already increased DPS presence.

Border funding in the state grew to over $1 billion a year in 2021.

Counties in Abbott's border disaster declaration
Pablo De La Rosa
The map of all 34 counties initially included in Governor Abbott's disaster declaration and counties declaring disaster locally. He would remove 11 counties, some of which have higher than average crossings reported. Four in the Rio Grande Valley declined to sign local disaster declarations.

Abbott declared a disaster across 34 counties, some far from the border because, he said, illegal crossings “posed an ongoing and imminent threat of disaster.” Some border counties rebuffed the idea. Democrats and immigration advocates called the move a cynical ploy to rally a xenophobic base.

While the governor portrayed the region as a lawless place, many of the officials leading that region pointed to their border cities’ low crime rates. Several of the Rio Grande Valley’s most populous and popular crossing counties rebuffed the governor's offer of additional law enforcement, and they refused to sign local disaster declarations calling them unnecessary.

Abbott delisted 11 counties from his disaster declaration but was unfazed by the criticism.

“But it’s clear that this Operation Lone Star, as prolific as the results have been, it’s clear that more is needed,” Abbott said, after touting the success of state efforts and attacking the “catch and release” policies of the Biden administration.

Using the spread of COVID-19 and increased illegal crossings as an explanation, Abbott issued a series of executive orders giving Texas the power to arrest, try and jail border crossers in the state.

“Abbott has several times over the past couple of months attempted to create his own version of immigration policy and to enforce his own version of immigration policy,” said Kate Huddleston, an attorney with the American Civil Liberties Union of Texas.

“But the Constitution does not allow him to do that. Immigration policy is up to the federal government," she said.

The U.S. Attorney General Merrick Garland made the same argument in a letter threatening to sue over one of Abbott’s recent executive orders.

“Texas has no authority to interfere with the United States' ‘broad, un­doubted power over the subject of immigration,’” Garland wrote.

FILE PHOTO: U.S. Attorney General Merrick Garland announces that the Justice Department will file a lawsuit challenging a Georgia election law, in Washington
KEN CEDENO/REUTERS
FILE PHOTO: U.S. Attorney General Merrick Garland attends a news conference to announce that the Justice Department will file a lawsuit challenging a Georgia election law that imposes new limits on voting, at the Department of Justice in Washington, D.C., U.S., June 25, 2021. REUTERS/Ken Cedeno/File Photo

Around the same time Abbott announced he was building the border wall, Abbott also announced that the state would build fencing too. He appeared on the right-wing Ruthless podcast in June to elaborate on his plan, saying not only is Texas going to continue building the wall, but it is also going to arrest as many people as possible who cross illegally and charge them for committing state crimes like trespassing.

“We will first be adding fencing right along the border, which will slow people to some extent, but also it sets up a crime. Anybody coming across a border, who in any way tries to damage that fence, they are guilty of two crimes: One is trespassing, the other is vandalism,” he said.

If they catch people for state crimes, they will put them in state jails.

“And so these people are subject to immediate jail time that we will be putting these people in jail for a long time because of the crimes they've committed,” Abbott said.

But actually imprisoning them has been logistically challenging. The Governor asked jailers across the state in late July to provide the beds.

Abbott also directed the Texas Department of Criminal Justice to make room at the state’s Briscoe unit in Dilley. According to reporting by ProPublica and the Texas Tribune, the facility can process as many as 200 people a day.

Migrants cross the Rio Grande river in Roma, TX
Go Nakamura/REUTERS
Asylum-seeking migrants' families walk while being escorted by an U.S. Border Patrol agent after crossing the Rio Grande river into the United States from Mexico in Roma, Texas, U.S. April 7, 2021. Picture taken April 7, 2021. REUTERS/Go Nakamura

In the interim, Abbott threatened to pull the licenses of 52 child care facilities holding unaccompanied migrant children for the federal government.

He has directed the National Guard to begin enforcing domestic state law, something generally barred when the Guard is nationalized under the president’s control because of the Posse Comitatus Act.

Most recently, Abbott ordered law enforcement to pull over any private citizen driving a group of migrants if they had a “reasonable suspicion” they had been detained by Customs and Border Protection and would have been expelled under the federal Title 42 program — which gives broad leeway to immediately turn back migrants over COVID-19 concerns.

The measures seemed to target humanitarian nonprofits and commercial bus lines who often transport migrants after being released from a CBP facility.

One Texas city sued the Biden administration over concerns of rising COVID-19 infection rates. Laredo sued in late July because the administration was transporting large amounts of migrants from other areas and dropping them there.

DPS troopers block the road at a shooting scene in Odessa, Texas.
DPS troopers block the road at a shooting scene in Odessa, Texas.

But are all these executive actions all legal?

“The state of Texas is using state jails to incarcerate immigration violators, arresting people, immigrants, under the theory of trespass. … These are very, very problematic. And I would say, It invites a constitutional catastrophe,” said Geoffrey Hoffman, director of the University of Houston’s immigration clinic.

Hoffman just published a piece for the Yale Journal of Regulation listing the limitations of state immigration enforcement activities. He noted that Arizona tried to pass state laws turning federal immigration law into state violations in 2012. They lost more than they won. Texas’ attempts to incrementally usurp federal authority, he said, also likely won’t work.

“The issue there in Arizona was that immigration enforcement is exclusively a federal matter. It's not for the states to do,” he explained.

Michael Greenberger at the University of Maryland said Texas is a little different than Arizona, since the state is using existing laws.

“I think he would have an argument that he's protecting the sovereignty of the state's borders, by having people who are not allowed to come into the state,” Greenberger said.

He explained that the problem is that despite Abbott threading the needle in some ways to frame it in state law terms, the governor is constantly arguing in interviews that Texas is enforcing federal law because the Biden administration can’t — that sounds a lot like the Arizona case. And those comments would all be admissible in court.

The Justice Department urged the governor to rescind his most recent executive order directing state police to pull over and possibly impound cars transporting migrants, saying it is “dangerous and unlawful.”

“In short, the Order is contrary to federal law and cannot be enforced,” said Garland’s letter to Abbott.

When Abbott refused to rescind the order, the Justice Department filed a lawsuit against the state, saying the order would obstruct the federal government from executing immigration policies.

The League of United Latin American Citizens said the order is so vaguely worded that it invites illegal racial profiling.

“You hit it right on the head...it’s vague for a reason. It’s meant to intimidate and harass,” said Rudy Rosales, state director of the League of United Latin American Citizens.

He said the governor’s actions do nothing to help solve the humanitarian crisis at the border.

“I don't have an answer for what's going on. I don't claim to. But I say the first thing we need to do is address the humanitarian issue of it all,” he said. “Nobody wants people smuggling children. Nobody wants open borders. We want well regulated humanitarian relief for those that come here seeking justice, seeking a better way of life.”

Instead, he said, the governor’s actions are just sowing chaos and ratcheting up tensions.

LULAC is one of several groups contemplating a lawsuit. The legality of Abbott’s executive orders is likely to be determined by the courts.

Paul Flahive can be reached at paul@tpr.org or @paulflahive

Carolina Cuellar contributed reporting to this story.

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