Texas Republican border maneuvers cause chaos, outrage local officials

Newcomers and an El Paso police officer just outside the entrance to the Paso del Norte international bridge Tuesday. A law passed by Texas Republicans would require local police to involve themselves in immigration enforcement. Its constitutionality is being questioned in the courts. (Marty Schladen/Ohio Capital Journal)

This story originally appeared on Ohio Capital Journal.

EL PASO, Texas — Texas’ GOP politicians have long used state law enforcement to act tough on immigration. But developments over the past few days seem to show how their latest maneuvering is inviting chaos — raising fundamental constitutional questions, outraging local officials, and worsening international relations.

For more than a decade, the state has spent billions trying to insert state and local law enforcement from Texas — and other states such as Ohio — into the immigration debate. The results have been dubious.

The latest uproar started last year when the legislature passed — and Texas Gov. Greg Abbott signed — Senate Bill 4 amid surges of migrants crossing the southern border seeking asylum. The law made it a misdemeanor on first offense to cross into the United States outside of a port of entry and empowered state and local police and courts to enforce the law.

It was predicated on the claim that the record surges in migration amounted to an “invasion,” a term with military implications that the facts on the ground don’t support. Such incendiary rhetoric helped motivate a racist massacre in El Paso in 2019 by a man who said he was trying to stop an “invasion” — and that helped motivate El Paso County and Las Americas Immigrant Advocacy Center to lead the lawsuit against S.B. 4.

The law’s constitutionality is highly questionable because the federal government reserves to itself the right to set migration policy. In 2012, the U.S. Supreme Court affirmed that principle by striking down parts of a 2010 Arizona law that would have given police in the state power to arrest people for being undocumented immigrants.

Under federal law, it’s legal to cross into the United States and seek asylum.

In response to that fact, the Texas Legislature passed S.B. 4 making undocumented immigrants criminals under state law. U.S. District Court Judge David Ezra last month blocked enforcement of the law weeks before it was expected to go into effect. But then on March 4, the hard-right 5th Circuit U.S. District Court of Appeals in New Orleans ruled that the law could take effect while its constitutionality was being considered.

The 5th Circuit ruling gave El Paso County, the Biden administration, and other plaintiffs the chance to file an emergency appeal with the Supreme Court. They did, arguing that migrants would suffer irreparable harm if the law were allowed to take effect without a judgment on its constitutionality.

On Tuesday afternoon, the court issued an unsigned order punting the matter back to the 5th Circuit and allowing the law to take effect. However, in a concurrence, Justices Amy Coney Barrett and Brett Kavanaugh urged the 5th Circuit to do its job and rule on the constitutional question quickly.

“If a decision does not issue soon the (El Paso County and other opponents) may return to this court,” Barrett wrote, according to the New York Times.

Taking the hint, the 5th Circuit temporarily blocked enforcement of S.B. 4 and scheduled an emergency hearing for Wednesday morning so the sides could consider the law’s constitutionality. It’s unclear when it will rule, but some experts said it’s unlikely the court will allow enforcement until its constitutionality is considered.

What happened last week

Asylum seekers wait as U.S. Border Patrol agents take groups of them into custody near McAllen, Texas. (John Moore/Getty Images)

On Tuesday, during the short time the law was in effect, the chaos it might create was foreshadowed.

Local governments and charities have long shouldered a disproportionate share of the burden created by spikes in migration and many are reluctant to pay for their law enforcement agencies to handle what has for more than a century been a federal job. In addition, officials along the border have long feared that delegating migration enforcement to local law officers will only push migrants further into the shadows by making them afraid to approach police.

“El Paso County has been very successful in mitigating and minimizing any immigration challenges,” County Judge Ricardo Samaniego said in a statement issued Tuesday while the law was in effect. “S.B. 4 is rudely disrupting the incredible collaboration between local law enforcement, (non-governmental organizations) and local government. We have been the safest community because of these collaborative efforts more so than any other factor.”

During the hours S.B. 4 was in effect, the Mexican government was left with the prospect of having to deal with 50 different state governments’ ideas about how undocumented migrants should be handled. It ended up saying it would only accept migrants from the federal government.

“Mexico recognizes the importance of a uniform migration policy and the bilateral efforts with the United States to ensure that migration is safe, orderly and respectful of human rights, and is not affected by state or local legislative decisions,” the Mexican government said in a statement. “In this regard, Mexico will not accept, under any circumstances, repatriations by the State of Texas.”

It also slammed the law broadly, saying it “seeks to stop the flow of migrants by criminalizing them, and encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”

El Paso and many other border cities are among the safest in Texas and the United States. And when it comes to federal immigration enforcement, green-striped Border Patrol vehicles were a near-constant presence this week on the long drive from Del Rio to El Paso.

Research has also shown that undocumented immigrants commit crime at substantially lower rates than the native-born.

In addition, migrants aren’t driving tanks, carrying bazookas or jumping off Higgins Boats as they cross the border. But Abbott, the Texas governor, is claiming the constitutional right to take migration enforcement into state hands by claiming that Texas is the victim of an “invasion.”

“I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself,” Abbott said in a Jan. 24 letter. “That authority is the supreme law of the land and supersedes any federal statutes to the contrary.”

Ohio Attorney General Dave Yost on Wednesday joined the “invasion” chorus. He led 22 state attorneys general in filing a friend-of-the court brief supporting Texas’s claim that it could preempt federal law under Invasion Clause of the Constitution.

However, nowhere does the brief explain how the situation at the border meets the primary definition of “invasion” — that of a military force entering bent on taking over.

Rather than being an “invasion,” experts have said that many of the problems caused by recent surges in migrants showing up, turning themselves in and seeking asylum have to do with a lack of infrastructure — such as insufficient immigration judges and courts to process their claims quickly.

A bipartisan agreement was hashed out earlier this year that would ease those and other bottlenecks, but it appears dead after former President Donald Trump warned fellow Republicans not to allow President Joe Biden to sign anything that would ease the migration issue.

As a consequence, advanced scanners to detect fentanyl in vehicles at the ports of entry — where most illicit drugs are crossing into the country — are sitting unused in warehouses due to a lack of money to install and operate them, NBC reported earlier this month. While some politicians imply that asylum seekers are smuggling in such drugs, the vast majority are seized at ports of entry.

As Texas Republicans try to insert state and local police even further into the immigration debate, their earlier efforts have cost billions and yielded poor results.

Former Gov. Rick Perry used fuzzy crime statistics to justify a 2014 surge of state troopers to the border. The most tangible result was that traffic tickets went down and vehicle crashes went up in portions of the state that were left under-policed, according to a 2015 analysis by the El Paso Times.

More recently, Abbott’s rushed effort in 2022 to surge the National Guard to the border left the troops themselves calling the mission “a disaster,” an investigation by Military Times and the Texas Tribune found.

Ohio Capital Journal is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Ohio Capital Journal maintains editorial independence. Contact Editor David Dewitt for questions: info@ohiocapitaljournal.com. Follow Ohio Capital Journal on Facebook and Twitter.

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