The order appears 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 re-election and eyeing the national office, in a wider drama filled with anti-immigrant rhetoric and legally questionable actions designed to exercise the federal government’s exclusive powers in the field. of immigration enforcement — possibly all the way to a conservative majority of the U.S. Supreme Court.
“I think under the current precedent it’s pretty clear that this is the kind of decision the federal government needs to make,” said Steve Vladeck, a professor at the University of Texas School of Law. “But I also think that the most relevant Supreme Court precedent may very well be the target of this policy.”
In 2012, the Supreme Court ruled on a series of immigration-related laws, including the SB 1070 or “show me your papers” law, passed by the Arizona legislature, affirming that states cannot enforce their own immigration. laws.
“I can’t imagine a legal argument that would allow the Texas governor to participate 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 to enforce its own immigration laws.”
But Texas has invested billions, including by diverting federal funding to coronavirus relief efforts, in its border crackdown, sending thousands of National Guard troops and directing the Department of Public Safety to help patrol and arrest migrants in the South. from Texas. With each new step, Abbott tries to blur the lines between federal and state authority. The state has brought migrants to Washington, halted commercial traffic on international bridges for what critics called unnecessary inspections, sued the Biden administration and cleared state prisons to detain migrants. It also raises money to build a border barrier.
The White House criticized Abbott’s latest plan on Thursday.
“Governor Abbott’s record on immigration does not give us confidence in what he has now come up with. His so-called Operation Lone Star put national guards and law enforcement officers in dangerous situations and resulted in a logistical nightmare that needed federal rescue, and his secondary inspections of trucks entering Texas cost a billion dollars a week in trade on one bridge alone without showing up. a single case of human or drug trafficking,” White House spokesman Abdullah Hasan said in a statement.
“President Biden is focused on real policy solutions to actually secure our border,” the statement added.
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 investigation into Abbott’s program, but Justice Department officials did not respond to questions about the scope of their investigation. However, a federal watchdog is assessing Abbott’s shift of about $1 billion in emergency funding to pay for the initiative.
“This is all a show,” said Claudia Muñoz, whose Texas-based Grassroots Leadership group runs a hotline for migrants detained by state officials for violations. “But it’s also more than symbolic, because he’s putting money behind it. Texas is testing the different ways they can take control of the immigration system, and the federal government lets them get away with it.”
The governor has repeatedly accused the Biden administration of encouraging the increasing number of immigrants who are taking risks and putting their lives in the hands of smugglers to reach Texas and the wider United States. He went after the president after San Antonio law enforcement officers found dozens of dead and dying migrants left behind in a blistering tractor-trailer last month.
“While President Biden refuses to do his job and enforce Congressional immigration laws, the state of Texas is taking another step forward and taking unprecedented steps to protect Americans and secure our southern border,” Abbott said in a statement. “As challenges at the border continue to mount, Texas will continue to take action to address the challenges posed by the Biden administration.”
But the Biden administration has largely – coerced by a court order – enforced the border policies enacted during its predecessor’s tenure, including a public health order evicting most border crossings and the Migrant Protection Protocols or the ‘Return to Mexico’ program. The Supreme Court last month authorized the Department of Homeland Security to end the policy. White House officials and Democrats have called Abbott a hypocrite for not making similar criticisms of Trump.
The wording of Thursday’s executive order is vague about what “sending migrants back to the border” means to soldiers and troopers who arrest them. Under the current operation, people caught on private land will be arrested and transferred to the state prison. Proponents 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 deportation.
The state of Texas does not have the authority to deport. Abbott spokesperson Renae Eze explained that “illegal immigrants to [ports of entry]†
“It’s discriminatory and violates civil rights,” said Laura Peña, legal director of 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 has fueled Abbott and can have deadly consequences.”
But at least one Texas jurisdiction has already begun to take matters into its own hands. Kinney County, a rural farming community in South Texas along the Rio Grande, was one of the first local governments to declare a state of emergency over the “border crisis” and has become the focal point of a far-right campaign to help the state advance its border security offensive. Boosting the province’s campaign has attracted the attention of conservative media.
This week, the county’s top elected official, Tully Shahan, brought together a group of sheriffs from rural Texas, elected leaders Roy, and former Trump executives Mark Morgan and Ken Cuccinelli to declare that their communities are “waging war” and that Biden “destruction of Western civilization.” The county is also embroiled in federal lawsuits over U.S. immigration and customs enforcement policy priorities and guidelines that it believes are infringing on agents’ ability to enforce the law, represented by Kris Kobach, a former Kansas Secretary of State known for his tough stance against illegal immigration.
Kinney County Sheriff Brad Coe initially told conservative media last month that he had expelled four migrants after US Border Patrol agents failed to take them into custody. He later changed his account and explained that the people had been involved in a smuggling incident that ended in a crash. Coe, a retired Border Patrol officer, said he didn’t have a safe place for them in the county jail, so he put the migrants in his truck, drove to Eagle Pass, Texas, the port of entry, and dropped them off.
“Coe took them to the bridge and they walked to Mexico and he will do it again,” said Matt Benacci, the sheriff’s spokesman. “Border Patrol wasn’t going to take them, so he made the best decision he could make to keep them in safe conditions.”
Attorney Kathryn Dyer, who unsuccessfully sued Coe for his migrant detention, said the county has been a willing facilitator of Abbott’s agenda. But she said the danger comes when other jurisdictions take notice and replicate.
“Kinney has taken on this leadership role,” she said. “We’re already seeing this blueprint and pushing for these issues in other states. If you have one state that ignores the line between federal and state jurisdiction, we all risk ignoring the law.”
While Abbott’s move was approved by hardliners on the right, the governor did not do what the small band of Texas sheriffs and elected leaders asked: declare an invasion.
“We recognize Governor Abbott’s admission that the facts on the ground along the border are consistent with the Constitution’s interpretation of invasion,” Cuccinelli, a Homeland Security official under President Donald Trump, said in a joint statement with Russ Vought. , president of the Conservative Center. for renewing America. But they said Abbott’s action doesn’t go far enough and is little more than “catch and release.”