Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.
The order appears to be unconstitutional, legal experts said, and may have little practical impact on Abbott’s ongoing, expensive and controversial border security initiative, Operation Lone Star. But it represents an escalation for the governor, who is running for reelection and eyeing national office, in a broader drama full of anti-immigrant rhetoric and legally dubious actions designed to challenge the federal government’s exclusive powers over immigration enforcement — potentially all the way to a conservative-majority U.S. Supreme Court.
“I think it is pretty clear under current precedent that this is the type of decision that the federal government gets to make,” said Steve Vladeck, a professor at the University of Texas School of Law. “But I also think the most relevant Supreme Court precedent may very well be the target of this policy.”
In 2012, the Supreme Court ruled on a series on immigration-related laws, including the S.B. 1070 or “show me your papers” law, passed by the Arizona legislature, affirming that states cannot enforce their own immigration laws.
“I cannot envision a legal argument under which the governor of Texas would be allowed to engage in unilateral immigration enforcement,” said Denise Gilman, director of the Immigration Clinic at the University of Texas at Austin. “We don’t want each state enforcing their own immigration laws.”
But Texas has poured billions, including by diverting federal coronavirus relief funding, into its border crackdown, sending thousands of National Guard troops and directing Department of Public Safety officers to help patrol and arrest migrants in southern Texas. With each new step, Abbott is attempting to blur the lines between federal and state authority. The state has bused migrants to Washington, halted commercial traffic on international bridges for what critics called unnecessary inspections, challenged the Biden administration in court and emptied state prisons to jail migrants. It also is raising money to build a border barrier.
Civil rights groups have asked the Justice Department to investigate Operation Lone Star for possible civil rights violations. The Texas Tribune reported this week that federal officials had opened an inquiry into Abbott’s program but that Justice Department officials did not respond to questions about the scope of their probe. A federal watchdog is, however, reviewing Abbott’s shifting of roughly $1 billion in relief funding to pay for the initiative.
“This is all a show,” said Claudia Muñoz, whose Texas-based group Grassroots Leadership runs a hotline for migrants detained by state officials on trespassing charges. “But it’s also more than symbolic because he puts money behind it. Texas is testing the different ways they can take control of the immigration system, and the federal government is letting them get away with it.”
The governor has repeatedly accused the Biden administration of encouraging the increasing numbers of immigrants taking risks and putting their lives in the hands of smugglers to reach Texas and the broader United States. He went after the president after San Antonio law enforcement officers found dozens of dead and dying migrants abandoned inside a sweltering tractor-trailer last month.
“While President Biden refuses to do his job and enforce immigration laws enacted by Congress, the state of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a statement. “As the challenges on the border continue to increase, Texas will continue to take action to address those challenges caused by the Biden administration.”
But the Biden administration has largely kept in place — compelled by court order — border policies implemented during his predecessor’s tenure, including a public health order expelling most border crossers and the Migrant Protection Protocols or “Return to Mexico” program. The Supreme Court last month cleared the Department of Homeland Security to end the policy. White House officials and Democrats have called Abbott a hypocrite for not levying similar criticism on Trump.
The wording of Thursday’s executive order is vague about what “returning migrants to the border” means for soldiers and troopers who apprehend them. Under the current operation, people caught on privately owned land are arrested and transferred to state prison. Advocates say more than 3,000 migrants have been detained without formal charges, access to lawyers or the right to a speedy trial. Many were later handed over to federal authorities for deportation or expulsion.
The state of Texas does not have the power to deport. Abbott spokesperson Renae Eze explained that “illegal immigrants will be returned/transported back to the border at [ports of entry].”
“It’s discriminatory and violates civil rights,” said Laura Peña, legal director for the Texas Civil Rights Project’s Beyond Borders program. “This is just another escalation of what is an underlying drumbeat of racism and xenophobia that Abbott has been fomenting and can have deadly consequences.”
But at least one Texas jurisdiction has already begun taking matters into its own hands. Kinney County, a rural South Texas ranching community along the Rio Grande, was one of the first local governments to declare an emergency over the “border crisis” and has become the focal point of a far-right campaign to push the state further border security offensive. Amplification of the county’s campaign has attracted attention from across conservative media.
This week the county’s top elected official, Tully Shahan, brought together a group of rural Texas sheriffs, elected leaders, Roy, and former Trump administration officials Mark Morgan and Ken Cuccinelli to declare that their communities are “waging war” and that Biden is “destroying Western civilization.” The county is also tied into federal litigation over the policy priorities and directives to U.S. Immigration and Customs Enforcement that it says infringe on agents’ ability to enforce the law, represented by Kris Kobach, a former Kansas secretary of state known for hard-line views against illegal immigration.
Kinney County Sheriff Brad Coe last month initially told conservative media outlets that he deported four migrants after U.S. Border Patrol agents did not take them into custody. He later changed his account, explaining that the people had been involved in a smuggling incident that ended in a crash. Coe, a retired Border Patrol agent, said he did not have a safe place for them in the county jail so he put the migrants in his truck, drove to the Eagle Pass, Tex., port of entry and dropped them off.
“Coe took them to the bridge and they walked across into Mexico and he will do it again,” said Matt Benacci, the sheriff department’s spokesman. “Border Patrol wasn’t going to take them, so he made the best decision he could consistent with keeping them in safe circumstances.”
Attorney Kathryn Dyer, who unsuccessfully sued to have Coe held in contempt over his detention of migrants, said the county has been a willing facilitator of Abbott’s agenda. But she said the danger comes when other jurisdictions take note and replicate.
“Kinney has taken on this leadership role,” she said. “We are already seeing this blueprint and pushing of these issues formulating in other states. When you have one state that is ignoring the line between federal and state jurisdiction, that puts all of us at risk of ignoring the law moving forward.”
While Abbott’s move was met with approval by hard-liners on the right, the governor did not do what the small group of Texas sheriffs and elected leaders asked for: declare an invasion.
“We acknowledge Governor Abbott’s recognition that the facts on the ground along the border comport with the Constitution’s understanding of an invasion,” said Cuccinelli, a Homeland Security official under President Donald Trump, in a joint statement with Russ Vought, president of the conservative Center for Renewing America. But they said Abbott’s move doesn’t go far enough and amounts to little more than “catch and release.”