Greg Abbott, the Texas governor, is expected to sign two rightwing immigration bills, setting off a likely constitutional battle over a new law that allows state and local police to arrest anyone suspected of crossing the Texas-Mexico border without documentation.
SB4, one of the harshest anti-immigration laws in US history, makes it a state crime to cross into Texas from another country without papers.
State judges are now required to order a migrant to return to the country they came from in lieu of prosecution. If the migrant refuses the judge’s order, they could face a felony charge and up to 20 years in prison. SB4 also gives Texas officers the ability to arrest anyone who they believe has crossed into the state illegally, a power that immigrant advocates and Democrats have decried as racist.
“This is un-American,” said the Texas state representative Jolanda Jones, a Democrat. “It will victimize people from the southern border, people of Latino descent.”
Jones told the Guardian that SB4 is “state-sanctioned” racism against Latinos, noting that the new law does not contain a remedy for Americans who are wrongfully detained, arrested or deported by sheriffs or state police.
“It will separate children from their parents,” Jones said.
The controversial state law is the newest anti-immigration brainchild of Texas Republicans. In June,Abbott bussed migrants to Democratic-led cities without proper coordination. That same month, Texas launched Operation Lone Star, a multimillion-dollar initiative that has placed razor wire and thousands of troops at the Texas-Mexico border.
This week, the Republican governor is also slated to sign SB3, which allocates $1.5bn in tax dollars toward Texas border security measures. The high price tag of the new law “includes paying for additional overtime expenses and costs” of state troopers to patrol Colony Ridge, a housing development near Houston.
Colony Ridge became a focus of the Abbott administration after the Daily Wire, a far-right media outlet, called the development a “magnet for illegal immigrants”.
Jones lambasted the new surge in border spending as fiscally irresponsible.
“This funding could and should be used to increase funding for public schools, public hospitals, neighborhood clinics, affordable housing, mental health facilities just to name a few,” Jones told the Guardian.
Both anti-immigration laws have been widely criticized by Texas Democrats, but SB4 has also drawn condemnation from bipartisan legal groups and the Mexican government.
A group of more than two dozen former immigration judges signed a statement this week calling SB 4 unconstitutional. The signatories included judges who had been appointed by both Republican and Democratic administrations.
“Our personal politics may vary, but we dedicated our careers to the equal and fair administration of federal immigration law,” the statement said, adding that SB4 should “offend those who treasure our constitutional protections”.
Removing noncitizens from the US falls under the jurisdiction of the federal government. Immigration law is strictly the purview of the federal government, not individual states, in part because immigration is a major part of US foreign relations.
“Mexico in particular is a relationship that is important and central to how the federal government controls our border,” said Emma Winger, deputy legal director of the American Immigration Council. “What Texas is saying is that they are going to force people, many people who may not be Mexican citizens, to return to Mexico.”
In a statement released on 15 November, Mexico’s secretary of foreign relations said the Mexican government “categorically rejects” SB4. Abbott’s signature sets the stage for a standoff between Texas law enforcement officials and the federal government of Mexico.
Texas Republicans know that SB4 will probably invite legal challenges from either the Biden administration, immigration advocates, or both.
“Part of the reason for passing this law is to send a message to the Biden administration that Texas is going to go as far as it dares, and they don’t care whether they lose in court, they’re making a political statement,” said Stephen Yale-Loehr, an immigration law professor at Cornell University.
Yale-Loehr said a legal challenge against SB4 would probably succeed, but court battles can take several years. In the meantime, Texas Republicans hope the threat of deportation will discourage migrants from crossing the southern border.
Immigration advocates like Yale-Loehr and Winger are especially concerned about the new law’s interim effect on asylum seekers. Under federal law, all people who enter the United States have one year to apply for asylum, regardless of legal status. The new Texas statute means that undocumented immigrants in the process of applying for asylum could be deported from the United States, even if their case is still pending.
“These are people who have presented themselves to border patrol agents in hopes of getting legal protection here,” Winger said. “Texas is now saying that those people can be prosecuted, they can be jailed, and then they can be forcibly removed from the country.”
