In a direct challenge to federal power over immigration, the Texas House on Thursday approved the creation of a state-level crime for entering the country from Mexico between ports of entry, allowing local police agencies to arrest and detain unauthorized migrants or order them back to Mexico.
The legislation was called by Gov. Greg Abbott in what would be a sharp escalation of his multibillion-dollar border security program, known as Operation Lone Star. The Texas House also approved an additional $1.5 billion for the state to build its own barriers near the international border.
The arrest measure now goes back to the Senate, which has already approved its own version, then head to Mr Abbott’s desk for his signature.
“It’s a humane, logical and effective approach,” said Rep. David Spiller, a west Fort Worth Republican, in introducing his arrest bill before the vote. “There is nothing unfair about ordering someone to go back to where they came from if they got here illegally.”
Emotions ran high during hours of debate and motion on the House floor that stretched overnight into Thursday morning, as Democrats railed against what they said would be a new crime-enforcement regime that could end up inadvertently targeting Hispanic Texans. At one point, tempers flared when Republicans moved to stop amendments to the bill.
“My community is under attack,” one Latino representative, Armando Walle, Democrat of Houston, he told his Republican colleagues. “You don’t understand,” he said. “It hurts us personally.”
For more than two years, Mr. Abbott and Republican lawmakers have been testing the limits of the state’s power to enact its own aggressive law enforcement policies in response to the growing number of migrants crossing into the state from Mexico.
But creating a felony under state law — giving Texas officers the authority to arrest migrants, including those seeking asylum — went a step further into the realm of immigration enforcement usually reserved for the federal government.
The legislative move is likely to lead to a consequential court battle over immigration and, for opponents of President Biden’s immigration policies, an opportunity to revisit a 2012 Supreme Court case originating in Arizona that was decided 5-3 in favor of the federal the primary role of the government in creating immigration policy.
“The key question is whether states can make it a crime to violate federal immigration law and detain an alien for violating that law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston, who wrote that Justice Anthony Kennedy, the author Arizona decisions, left an open question custody.
Other legal experts saw the Supreme Court decision as clearly preempting state laws, such as the one advancing in Texas.
“What Texas is doing is taking up the mantle of Arizona,” said Daniel Morales, a law professor at the University of Houston. “This is a complete reconsideration of the issues that arose and were resolved in that case.”
While the federal government is responsible for state borders, border states occasionally try to establish their own control, such as Arizona did it more than a decade agowhen faced with a large number of migrants in the country.
That country passed a law that, among other things, made it a state crime to be in the country without authorization and authorized police officers to arrest migrants believed to be deportable. The situation drew national attention, even before the law, in part because of local Sheriff Joe Arpaio, who aggressively pursued migrants in Maricopa County.
Supreme Court overturned most Arizona laws in 2012finding that many of its major provisions, including those for in-state immigration crimes and arrests, are either preempted by or inconsistent with federal law.
A bill approved by the Texas House on Thursday appears to go even further than Arizona’s statute in empowering local police officers to order migrants to leave the country.
“It’s unprecedented,” said Barbara Hines, former director of the immigration clinic at the University of Texas Law School. She said she testified twice against the bill, telling lawmakers it was unconstitutional.
“Texas cannot force Mexico to take back people it has not agreed to take back,” said Gerald Neuman, a law professor at Harvard University. He added that states are not recognized with the power to order people to leave the country.
Still, state police officials in Texas have already discussed how they will use the new law to detain migrants caught crossing the Rio Grande, return them to international bridges and direct them to cross into Mexico — or face arrest and charges.
During a House committee hearing on the bill, Steve McCraw, director of the Texas Department of Public Safety, said large new prison facilities would not be needed to handle the large number of arrests if most people agreed to return across the border. The more migrants who are taken to the bridges who are “willing to cross voluntarily, the better”, Mr McCraw said.
Some lawmakers have expressed concern that arresting migrants for a state offense could have the effect of separating children from their parents, as happened during the Trump administration when federal border agents strictly enforced the federal no-entry law. Mr. McCraw said his state troopers would not make such arrests.
“We don’t want to separate the mother from the child,” said Mr. McCraw during a committee hearing.
The legislation makes no exceptions for those arriving between ports of entry who intend to apply for asylum with the federal government, an option that is enshrined in federal law. That could trigger other legal challenges, constitutional law experts say.
“The issue of asylum is tricky,” said Mr. Blackman. “That’s the problem.”
It was not clear how the law would affect existing coordination between Texas law enforcement officers and the U.S. Border Patrol. Many migrants who cross into Texas seek to immediately turn themselves in to federal border agents to file for asylum.
Until recently, if government officials encountered them first, they usually alerted US agents and turned them over for federal processing.
But in recent months, members of the Texas National Guard and state troopers have taken a more aggressive approach to migrants trying to cross the Rio Grande, laying barbed wire along the riverbank and, in some cases, yelling at them to return to Mexico.
And tensions have risen between state and federal officials over the state’s placement of buoys in the river and concertina wire, which some federal border agents cut to help migrants struggling in the river. On Tuesday, Texas Attorney General Ken Paxton sued the Biden administration over wire-cutting by agents, saying the practice damaged Texas property and hurt the state’s efforts to deter migrant arrivals.
A new law authorizing arrests promises to raise interest even more.
“It’s going to raise new tensions,” said Aaron Thorn, senior staff attorney at the Texas Civil Rights Project.
Texas House Bill, known as HB 4it was passed early Thursday morning after Democrats tried repeatedly and unsuccessfully to defeat or amend it.
Although the bill approved by the House of Representatives differs in some details from a similar bill passed by the state Senate this month, both constitute a state-level felony, allowing the arrest of migrants crossing between points of entry. The final version of the bill is expected to pass both houses of the legislature as early as this week.
Under the law, local or state police can arrest migrants believed to have crossed illegally even hundreds of miles from the border.
“Not just DPS,” said Mr. Walle, the Houston lawmaker, in a phone interview before the debate, referring to the Texas Department of Public Safety. “Not only at the border. Now you’re going to tie up local law enforcement agencies across the state.”
He added that “it instills fear in communities” that normally want to work with law enforcement.
Since 2021, state troopers have been arresting some migrants found on private land on trespassing charges as part of Operation Lone Star.
The arrests, which initially focused exclusively on men, were challenged by immigration and civil rights groups. When the program began, arrests flooded local jails. The state has since dedicated space in certain state prisons to house migrants facing trespassing charges.
Many of those migrants eventually found themselves deported, Mr. Thorn said, although some spent months in jail after being arrested on misdemeanor charges.