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Texas' controversial state immigration-enforcement bill heads to federal court on Thursday

Migrants who crossed into the U.S. from Mexico are met with concertina wire along the Rio Grande, Thursday, Sept. 21, 2023, in Eagle Pass, Texas.
AP Photo/Eric Gay
Migrants who crossed into the U.S. from Mexico are met with concertina wire along the Rio Grande, Thursday, Sept. 21, 2023, in Eagle Pass, Texas.

The state of Texas will try to convince a federal judge on Thursday that a controversial law expanding the state’s immigration-enforcement powers isn’t in violation of the U.S. Constitution.

Senate Bill 4 was passed by the Republican-dominated Texas Legislature in late 2023. The law makes unauthorized entry or reentry into Texas from Mexico a crime, and authorizes a judge or magistrate to order a migrant to return to Mexico, regardless of their nationality.

The legislation was part of a package of hardline immigration proposals championed by Gov. Greg Abbott and passed by lawmakers in response to what Abbott has called President Biden’s “open-border” policies.

The law is scheduled to take effect March 5, but advocacy groups filed a lawsuit a day after legislation was signed. The lawsuit alleges SB 4 attempts to usurp federal law, since courts have ruled the federal government has jurisdiction over immigration policy. They are seeking to halt the law from taking effect before next month.

The lawsuit was filed by the American Civil Liberties Union of Texas and the Texas Civil Rights project on behalf of El Paso-based Las Americas Immigrant Advocacy Center, American Gateways, and El Paso County. It names Texas Department of Public Safety Director Steve McCraw and El Paso County District Attorney Bill Hicks as defendants.

“We’re suing to block one of the most extreme anti-immigrant bills in the country,” Adriana Piñon, the legal director of the ACLU of Texas, said in a statement after the lawsuit was filed. “The bill overrides bedrock constitutional principles and flouts federal immigration law while harming Texans, in particular Brown and Black communities. Time and time again, elected officials in Texas have ignored their constituents and opted for white supremacist rhetoric and mass incarceration instead.”

The Department of Justice later filed its own lawsuit, also alleging the state was trying to override the Biden administration’s constitutional authority.

“Texas cannot run its own immigration system. Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations. SB 4 is invalid and must be enjoined,” the federal government’s lawsuit alleges.”

The cases have since been consolidated and Thursday’s hearing will address both challenges.

Abbott has said he thinks the law will survive these legal battles, but added he’s prepared for a court challenge, all the way up to the U.S. Supreme Court if necessary.

“We think that Texas already had the constitutional authority to do this, but we also welcome a Supreme Court decision,” Abbott said at the bill signing in Brownsville last year.

The state filed its response in federal court last week. In it, the office of the Texas Attorney General argued the bill doesn’t create a conflict between the state and federal governments because SB 4 mirrors federal policy.

“SB 4 is not facially preempted because a state law that duplicates federal law does not ‘conflict’ with that federal law,” the filing states. “Conflict preemption exists only where it is ‘[impossible]’ to comply with both state and federal law, or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”

There has been speculation at the state Capitol that the legislation was crafted, in part, to force the high court to revisit a 2012 decision on a separate law out of Arizona. In that case, the U.S. Supreme Court ruled immigration enforcement was largely under the purview of the federal government, although a provision of the law requiring police officers to inquire about a person’s immigration status was allowed to stand. But the court struck down a provision of the law that would have allowed a police officer to arrest someone under the suspicion that a deportable offense was committed.

In its response, the state of Texas also argues that the Arizona decision didn’t address certain claims made in the current litigation — specifically, that allowing a local judge to order a migrant to return to Mexico is unconstitutional.

“Arizona, the cornerstone of the Plaintiffs’ arguments, does not address whether the sort of judicial proceedings described under this provision of SB 4 are field preempted,” the filing states.

Members of advocacy groups and other opponents of the legislation will be in Austin Thursday to highlight what they argue are the dangerous aspects of the bill before and after the proceedings. It’s unclear when a ruling will be issued.

Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.

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Julián Aguilar | The Texas Newsroom