AUSTIN — Gov. Greg Abbott is testing state powers to enforce federal immigration laws, citing a surge of migrants at the Texas-Mexico border.
Here’s what we know:
On Thursday, Abbott ordered state police and National Guard soldiers to take unauthorized immigrants they apprehend to the ports of entry, rather than waiting to turn them over to federal Homeland Security officials.
Nevertheless, Texas Department of Public Safety troopers and Texas Military Department soldiers still would hold in state detention centers, if possible, some of the people who they suspect are in the country illegally.
Under Abbott’s 16-month-old border initiative Operation Lone Star, in certain instances, migrants who’ve been apprehended by Texas can be prosecuted on state charges, such as trespassing.
In cases in which they’re not suspected of violating state law, only the federal law that bars entering the U.S. between the ports of entry, the migrants could be taken directly to the bridges and released.
It’s not clear exactly how that would work.
Spokespeople for Abbott, DPS and the military department have not responded to queries about whether any undocumented immigrants actually have been taken to and released at ports of entry, which are international bridges at the border.
Also, DPS spokeswoman Ericka Miller, responding to an email asking how the agency was carrying out Abbott’s order and whether state police would use force if migrants refuse to accompany them to ports of entry, said late Thursday:
“The department is acting under the direction of Governor Greg Abbott’s Executive Order No. GA-41, which you can find here. At this time, we are unable to discuss operational specifics.”
On Friday, the military department did not immediately respond to similar inquiries.
Why is Abbott doing this?
In his order, Abbott said President Joe Biden’s attempt to end expulsions under a pandemic-related health policy known as Title 42 and cancel the Migrant Protection Protocols that have forced asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts “will invite the cartels to smuggle millions more illegal immigrants into Texas.”
Abbott said illegal crossings have reached record levels.
Late Thursday, appearing on the Fox Business channel’s “Kudlow,” Abbott said Biden administration officials “want open border policies.” Texas will do whatever it takes to stop the Democratic administration, said Abbott, a Republican who on Nov. 8 is asking voters for a third term.
“Texas is stepping up trying to compel the Biden administration to actually follow the laws passed by the U.S. Congress,” Abbott told host Larry Kudlow. “And we will continue to press that cause because it is essential for American sovereignty, for Texas’ safety and for the United States of America for people to be able to come to the United States legally, but not illegally.”
With the order, Abbott said the state is “now doing the unprecedented and that is Texas law enforcement and National Guard, anybody they apprehend coming across the border illegally, they will be returning to the border.”
White House officials have said that under Biden, the federal government is installing new border technology, beefing up the budget of the Department of Homeland Security, pushing to deter human smuggling and seeking hemispheric cooperation to manage flows of migrants. They’ve mocked Abbott’s April truck inspections at the border as ineffectual and costly.
On Friday, White House press secretary Karine Jean-Pierre hit back at Abbott.
“The immigration enforcement is a federal authority, and states should not be … meddling in it,” Jean-Pierre said. Abbott “has a track record of causing chaos and confusion at the border,” she said.
Jean-Pierre referred questions about whether the federal government would legally challenge Abbott’s policy to the Justice Department.
Does Abbott have a legal strategy?
Abbott could be trying to win broader latitude for states to enforce federal immigration laws. In his order, he noted that in 2012, the U.S. Supreme Court may have knocked down parts — but didn’t overturn all — of Arizona’s controversial immigration law, SB 1070.
Abbott specifically referred to a provision that in some circumstances required Arizona state and local officers to verify the citizenship or alien status of people arrested, stopped, or detained. A majority opinion by then-Justice Anthony Kennedy said state and local law enforcement couldn’t detain people for prolonged periods for not carrying immigration documents, and the cops could be sued for racial profiling. But the court left the provision, known as Section 2, standing.
John Yoo, a University of California-Berkeley law professor, said that with recent changes in the court’s composition, Abbott may be trying to provoke a suit that would spur the court to reconsider its ruling in Arizona vs. U.S.
“It’s quite clever,” said Yoo, who served in the Justice Department under former President George W. Bush. “He is going to provoke a lawsuit to test the Arizona case to see if … he can overturn it.”
What has been the reaction?
Texas House Democratic Caucus Chairman Chris Turner of Grand Prairie said the order was “nothing more than Gov. Abbott’s latest political stunt to distract Texans from his continued failures as governor.”
As the crises mount — juvenile justice system in shambles, foster care system in shambles, never-ending gun violence— Gov. Abbott shows he is incapable of leading.
— Chris Turner (@ChrisGTurner) July 8, 2022
Laurence Benenson, vice president of the National Immigration Forum, said the order “violates the longstanding legal precedent that immigration enforcement is a federal responsibility” and will almost certainly invite lawsuits.
“We can agree that we need more orderly processes at the border,” said Benenson, whose group tries to enlist conservative and moderate business and faith groups to support a comprehensive immigration overhaul. “This isn’t one. The task of enacting immigration enforcement and removal policies belongs exclusively with the federal government.”
Still, some immigration hard-liners were not pleased. They’ve spent months lobbying Abbott to declare an “invasion” of migrants under a rarely invoked clause of the U.S. Constitution.
In his order, Abbott waved at the Constitution’s charge that Congress protect states against invasion. But the governor neither declared an “invasion” nor ordered migrants to be thrust back across the Rio Grande at points where they crossed.
“No significant changes to current policy. This is still catch and release,” tweeted a group associated with former Homeland Security official Ken Cuccinelli, who has said states actually should push migrants back into Mexico.
Cuccinelli, a former Virginia attorney general, tweeted that “if today’s action does NOT include putting invaders back over the border into Mexico, it will not change the flow.”
Read the EO, not the press release.
In the EO, @GregAbbott_TX ducks using Texas’ invasion authority in Art. I, Sec. 10 of the U.S.Constitution.
Instead, he uses a carveout from AZ v US (2012) and he talks in terms of enforcing immigration law.
That tells me that…
— Ken Cuccinelli (@KenCuccinelli) July 7, 2022
Abbott spokeswoman Renae Eze, though, pushed back on the criticism from the right.
“Anyone who suggests we should order Texas law enforcement to go into Mexico with these illegal immigrants would be subjecting our DPS troopers and Texas National Guard soldiers to arrest by Mexico,” she told the Houston Chronicle.
Yet some still suggest the initiative is legally fraught. Victor Manjarrez Jr., a former border patrol chief who now teaches at the University of Texas at El Paso, questioned whether state officers are being trained in immigration law. Federal agents go through all sorts of training to help them determine someone’s national origin and their “deportability.”
“There’s an issue of liability that’s going to come up,” he said. “What if you return someone who’s not supposed to be returned?”
Mario Carrillo, campaigns director at America’s Voice, a pro-immigrant advocacy group, frowned on Abbott’s use of the phrase “invasion” in his order.
“The legal ramifications of a state unilaterally declaring an ‘invasion’ by peaceful migrants seeking out U.S. authorities to whom they can request asylum are hard to fathom,” Carrillo said. “But this is not a question of law or policy, this is another stunt in political theater to position the governor for his campaign and any future campaigns and will no doubt be the talk of Fox News.”