Texas Gov. Greg Abbott (R) held a press conference this week at the Southwest border in the state’s Rio Grande Valley to sign Senate Bill (SB) 4 into law. Among other things, SB 4 makes it a state crime for an alien to enter Texas “directly from a foreign nation” without seeking admission at a port of entry. That crime is punishable as a misdemeanor for the first offense, and a felony for subsequent ones. SB 4 also allows state magistrates to give such aliens the option to return back across the border in lieu of prosecution—a form of “self-deportation” that is not dependent on CBP. Litigation over the offense is already gearing up but expect the legality of this law to be on the Supreme Court’s docket soon. Biden should move cautiously, even if he may have the better legal argument, because Abbott has the facts on his side, and the support of an increasing number of voters.
Arizona v. U.S.
If this all sounds familiar, it’s because the state of Arizona attempted something similar in the past.
As I explained in 2017, Metro Phoenix at the turn of the millennium was a veritable war zone, with smugglers, and rival smuggling gangs, vying for control of the lucrative migrant trade.
For example, in October 2007, Maricopa County Sheriff's deputies raided a so-called "drop-house" for illegal aliens in Phoenix, taking 54 people into custody, “including four children and seven suspected smugglers.” According to press reports, in the house, "[o]ne man's head had been wrapped in a plastic bag and submerged in a waste-filled toilet," and that victim's ‘pregnant wife was severely beaten”.
This was not an isolated incident. In February 2011, 55 illegal aliens (including two smugglers) were arrested by ICE agents in Phoenix, and in March 2010, "Maricopa County Sheriff's Office uncovered a drop house ... in west Phoenix where deputies arrested four human smugglers and found 36 immigrants held hostage in deplorable conditions." In fact, in FY 2008, "3,221 illegal immigrants [were] found in 186 drophouses."
In August 2010, the Village Voice described Phoenix as "America's Kidnapping Capital", and detailed the torture, rape, and abuse of illegal aliens at the hands of their smugglers. As that article explained:
Kidnappers kick and punch hostages, beat them with baseball bats, submerge them in bathtubs and electrically shock them, burn their flesh with blowtorches, smash their fingers with bricks, slice their bodies with butcher knives, shoot them in their arms and legs, and cut open their backs with wire-cutters. The kidnappers usually video-tape the sexual humiliation and violence and send the images to family members if ransoms aren't paid.
The torture house is one of several — usually three — dwellings where smuggled immigrants are stashed. Horrible conditions intensify after the first house, which some victims describe as almost welcoming.
...
Once some pollos [smuggled aliens] arrive at the second house, no matter which band of coyotes is holding them, they are often forced to strip naked and pose in sexually humiliating positions while their captors take pictures. Some may be made to work off their debts by becoming guards, drivers, or maids in a smuggling organization.
Violence houses are the last stop for most pollos.
In response, in 2010 Arizona passed S.B. 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act”, which was designed to “discourage and deter” illegal immigration. Among other things, S.B. 1070 also made it a crime for an alien to be in the state without federal authorization.
The Obama administration filed suit against Arizona (U.S. v. Arizona) before the law took effect, arguing the state did not have authority to enforce the act and that the provisions therein were preempted by federal law.
In July 2010, a federal district court judge in Arizona enjoined certain provisions of the law, finding that they were, in fact, preempted. Arizona sought review in the Court of Appeals for the Ninth Circuit, which in April 2011 affirmed the lower court’s preliminary injunction of those specific provisions.
Arizona then filed a petition for writ of certiorari with the Supreme Court, which the justices granted in December 2011 in a case now captioned Arizona v. U.S.
At issue was whether the four provisions of S.B. 1070 enjoined by the lower courts, which authorized and directed state law-enforcement officers to “cooperate and communicate with federal officials regarding the enforcement of federal immigration law” and that imposed “penalties under state law for non-compliance with federal immigration requirements”, were preempted by federal law.
In its June 2012 opinion, the Court upheld section 2(B) of S.B. 1070, which requires law enforcement officers with reasonable suspicion during a “lawful stop, detention, or arrest” that an individual is an illegal alien to make a “reasonable attempt . . . when practicable, to determine the person's immigration status” if there is a reasonable suspicion “that the person is an alien and is unlawfully present in the United States.”
The justices, however, held that three provisions of the state law were preempted by federal law:
Section 3: Which made "willful failure to complete or carry an alien registration document" a state crime.
Section 5(C): Which made it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in [Arizona]."
Section 6: Which authorized state and local officers to make arrests without warrant where there is probable cause to believe "the person to be arrested has committed any public offense that makes the person removable from the United States."
Back to S.B. 4
The day Abbott signed S.B. 4, the commissioners of El Paso County unanimously voted to direct the county’s staff to sue the state to block enforcement of the law, in conjunction with the ACLU. I would expect Biden’s DOJ to make a similar effort in the immediate future.
The ultimate success of those efforts are unclear, because there are some significant differences between Arizona’s S.B. 1070 and the Texas bill. Arizona never attempted to make illegal entry into the Grand Canyon State from Mexico a state offense, for example, which is at the heart of S.B. 4.
Why is that important? Because under our federal constitutional order, Texas maintains a certain level of sovereignty. As James Madison explained in Federalist 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation [sic], and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State. [Emphasis added.]
Abbott has been a dogged opponent of the Biden administration’s immigration and border policies. As he explained when he launched the state’s border-security initiative, “Operation Lone Star”, in March 2021:
The crisis at our southern border continues to escalate because of Biden Administration policies that refuse to secure the border and invite illegal immigration .... Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.
Later, in November 2022, the governor invoked the “Invasion” clause of the U.S. Constitution and Texas state constitution in response to the continued flow of smugglers, migrants, and drugs into the state. He tweeted at the time:
I invoked the Invasion Clauses of the U.S. & Texas Constitutions to fully authorize Texas to take unprecedented measures to defend our state against an invasion.
— Greg Abbott (@GregAbbott_TX) November 15, 2022
I'm using that constitutional authority, & other authorization & Executive Orders to keep our state & country safe: pic.twitter.com/2Jt5HEMgp5
Texas’ strongest argument in support of the bill will be that because the Biden administration has made it impossible for Border Patrol agents to enforce the provisions of the Immigration and Nationality Act (INA) at the Southwest border, the federal government has ceded that authority to the state, and that therefore preemption principles will not apply.
At the heart of federal preemption is the principle that “Congress intended to supersede state law by leaving no room for it”, and that the legislative branch has “occupie[d] the field when the federal government’s interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject”.
Nearly all—if not all—congressional Republicans will be sure to file amicus briefs supporting the bill, arguing that yes, they have “occupied the field” when it comes to immigration enforcement in the INA but that the administration has vacated the field by refusing to comply with its enforcement mandates.
Note also that there are certain prohibitions in the bill that bar enforcement at, among other locations, churches, schools, and hospitals, likely an effort to blunt contentions that S.B. 4 gives officers carte blanche to run roughshod in the course of enforcement.
The Political Component
It can’t be overstated, however, that there is also a political component to this bill. There’s a reason Abbott signed it in Brownsville—a Rio Grande Valley town that had been at the epicenter of the migrant crisis until late, and that among those in attendance (along with several big-time state officials) was Brandon Judd, president of the National Border Patrol Council (NBPC), the union representing Border Patrol agents.
As the administration attempts to fight this bill in the courts, the president’s immigration and border policies will be at issue as much as the language of S.B. 4 itself.
And those legal arguments will be advanced as the president is seeking reelection to a second term in November. As I have explained numerous times in the past, the border is Biden’s biggest electoral vulnerability.
In fact, a recent Harvard/Harris poll showed that 57 percent of registered voters—including 20 percent of Democrats and 60 percent of Independents—preferred Trump’s enforcement-driven border policies to Biden’s much more permissive approach.
What’s more, when respondents to that poll were told that 3.2 million aliens had entered the United States unlawfully in FY 2023, 70 percent of them called on the administration to “issue new, stricter policies to reduce the flow of people across the border”. That included 55 percent of registered Democrats.
In that vein, it should not be overlooked that the Obama administration responded to the smuggling-driven violence and disorder at the U.S.-Mexico line in August 2014 by cracking down on the smugglers and securing the border. Arizona might have lost the case, but things in Phoenix got a whole lot calmer quickly, in large part thanks to the federal government’s renewed efforts.
Expect challenges to Texas’ law criminalizing illegal entries into the state from Mexico to start popping up soon, including a suit filed by Biden’s DOJ to block enforcement of the law. The president should move cautiously, however, because even if he may have the better legal argument, Texas Gov. Greg Abbott has the better factual one—and voters are increasingly dissatisfied with the chaos at the Southwest border.