As Abbott orders state police to return migrants to border, critics on the right say it’s not enough
Gov. Greg Abbott on Thursday authorized state law enforcement to return migrants suspected of entering the country illegally to southern ports of entry, though he stopped short of instructing officials to expel them from the country, as some conservatives have urged him to do.
It was not immediately clear what practical impact the directive would have. Under his border initiative, Operation Lone Star, Abbott has already ordered state police and Texas National Guard soldiers to apprehend those who cross the border and turn them over to federal immigration authorities, where they are then deported or released back into the country to await their asylum hearings.
The move comes two days after a group of local officials called on Abbott to declare Texas under “invasion” and start expelling migrants suspected of crossing the border illegally. That action would be unprecedented for the state, but some conservatives argue it would be justified because of the Biden administration’s push to roll back Trump-era border policies.
Even without deporting those who cross the border, Abbott’s order further expands Texas’ border security role, testing constitutional and legal limits that reserve those duties for the federal government.
The Biden administration panned the move.
“Gov.Abbott’s record on immigration doesn’t give us confidence in what he has cooked up now,” a White House official said. “His so-called Operation Lone Star put National Guardsmen and law enforcement in dangerous situations and resulted in a logistical nightmare needing federal rescue, and his secondary inspections of trucks crossing into Texas cost a billion dollars a week in trade at one bridge alone without turning up a single case of human or drug trafficking.”
The response from the right on Thursday followed a similar pattern, with Ken Cuccinelli, a former Homeland Security official under the Trump administration and lead proponent of the “invasion” strategy, calling the governor’s directive insufficient.
“The governor does not appear to formally declare an invasion nor direct the National Guard and Department of Public Safety to remove illegals across the border directly to Mexico,” Cuccinelli, now a senior fellow at the conservative-leaning Center for Renewing America, said in a statement with the group’s president, Russ Vought. “That is critical. Otherwise this is still catch and release.”
An Abbott spokesperson did not respond to a request for comment. The governor previously expressed unease about the idea of state authorities unilaterally expelling migrants from the country, which he said could be legally tricky.
“There are federal laws that law enforcement could be prosecuted under if they were to take someone, without authority, and immediately return them across the border,” he said in April.
Some legal experts believe the “border invasion” strategy would run afoul of U.S. asylum laws, along with legal precedent that gives the federal government broad discretion in setting and enforcing immigration policy.
Justice Department lawyers used that argument last summer when they successfully sued Texas over Abbott’s push to stop and search drivers suspected of transporting migrants into the state.
The “invasion” argument would be an entirely new concept to immigration law, said Leon Fresco, an immigration attorney based in D.C. Fresco said Abbott’s order seems designed to invite litigation before state and federal courts, where Texas and other Republican-led states have increasingly turned to try and shape immigration law.
“They want to tee that issue up,” he said.
Cuccinelli and other supporters of local-led deportations say states have the constitutional right to protect themselves from “imminent danger” when they believe the federal government has failed to.
That argument may not hold up under an some readings of the Constitution, Fresco said, since it could mean the U.S. was technically under invasion between the writing of the Constitution and 1882, when the first federal law restricting immigration was enacted.
“How can an invasion be people coming to America without America’s permission, since that was the state of affairs in America for the first 100 years of the republic?” Fresco said.
Even without invoking an outright invasion, Abbott’s directive could run into other legal pitfalls, immigration experts said. State authorities will have to arrest migrants they plan to move, and it’s unclear what they would arrest them for. Texas has been detaining some migrants on state trespassing charges, but the state doesn’t have the authority to enforce immigration laws.
“I don’t know under on what authority they actually can move them,” said Doris Meissner, head of the U.S. immigration program at the nonpartisan Migration Policy Institute and a former commissioner of the Immigration and Naturalization Service, the federal agency that predated U.S. Customs and Border Protection.
“From everything I know, that would be a violation of civil rights laws,” Meissner said.
Abbott has frequently criticized President Joe Biden’s immigration policies, which he contends are responsible for the record number of migrants apprehended at the U.S.-Mexico border since Biden took office. Those policies, Abbott argues, have compelled Texas’ unprecedented border policies, which are backed by a record $4 billion in state spending for the current two-year budget cycle.
Biden has defended his administration’s work, saying he inherited a broken system. Immigration advocates and policy experts also note that Biden has kept some of the signature Trump-era border policies in place, either by choice or under court order.
Among them is Title 42, a public health order that allows immigration authorities during a pandemic to expel migrants from the country before they can apply for asylum. Biden continued the policy for more than a year, though it has been used less frequently than under his predecessor, Donald Trump. He announced plans to end the policy earlier this year, but a federal judge has ordered it to be kept in place.
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