Border Battles: The Consequences of Texas’s Latest Bill to Control Immigration

Photo by Ivan Pierre Aguirre for the Texas Tribune.

Introduction

On October 26, 2023, the Texas House passed a bill criminalizing entering the country through unofficial entry points, giving local police agencies the power to jail unauthorized migrants. While Texas has been arresting thousands of migrants since 2021, the bill would extend that power to all forms of Texas police, giving them authorization to drive migrants to the border and order them to return to Mexico (Weber, 2023). The proposal is the latest move by Texas lawmakers to take control of the border and immigration policy, as they argue that the Biden administration has failed to uphold its responsibility. Since immigration is largely under federal jurisdiction, signing the bill into law would challenge the federal government’s power and counter years of judicial precedent.

Most importantly, the bill sets the ground for a consequential case that would revisit the original 2012 Supreme Court Case (Arizona v. United States), where the court blocked a similarly tough immigration law in Arizona. Since then, although the Supreme Court has heard other contentious immigration cases, the Arizona decision has been cited to solidify the federal government’s role as immigration enforcer (Thanawal, 2018). However, one cannot assume that the court would apply its precedent consistently, as the past two years have seen significant turnover in the court’s makeup and interpretation of doctrine. Because of the political shift of the judicial branch, there is strong evidence to believe that the new court will allow the bill to stand, if passed, altering the way the country manages border control for the worse.

Arizona (2012) versus Texas (2023)

In 2010, former Arizona Governor Jan Brewer signed the nation’s toughest law on immigration, focused on criminalizing the act of being an undocumented immigrant. The law received heavy criticism from federal lawmakers and reignited the conversation about immigration nationally. It allowed police to detain anyone suspected of being undocumented (Archibold, 2010). Furthermore, like the Texas bill, the Arizona law made it a state crime not to carry immigration papers, known as the “show me your papers” provision (Liptak, 2012). In 2012, the Supreme Court responded to the law by blocking the measures that would enforce criminal penalties on migrants. The majority opinion consisted of liberal justices who argued that states did not have the power to undermine federal law. The much louder dissent was from conservative judges, who argued for states’ rights. These justices even commented on their disapproval of the general 2012 immigration policy, claiming that states should have the right to regulate their borders because the federal government is inadequate (Liptak 2012). In the end, the court only upheld the “show me your papers” provision which expanded the ability of local law enforcement to determine one’s immigration status but still prevented states from encroaching on the federal government’s power to arrest and deport migrants (Liptak 2012).

The Texas bill bears striking similarities to Arizona’s law. Both explicitly make it a state crime to be an undocumented immigrant and both emerged due to state lawmakers’ concerns that federal action against immigration is inadequate. However, the Texas bill goes further by authorizing local police to order that migrants return to Mexico, regardless of where they are from. It further specifies that officers may transport migrants to the border and charge them with a second-degree felony if they do not comply (Houghtaling, 2023). The bill also grants local police financial provisions to patrol neighborhoods flagged as potential havens for migrants (Houghtaling, 2023). These drastic changes are motivated by lawmakers’ belief that the influx of migrants is at a critical point, a claim that has yet to be confirmed by recent data. Lawmakers claim that undocumented immigrants must be harshly dealt with as they take jobs meant for American citizens, bring crime to America, and do not deserve American resources if they come illegally. However, numerous studies have disputed these concerns, demonstrating that undocumented immigrants support the economy as part of the “critical infrastructure workforce” (Truong, 2022).

Experts are confident that the bill will reach the Supreme Court, due to how severely it changes current immigration policy and its extreme encroachment on federal power (Goodman, 2023). As previously described, conservative judges in the Arizona case had already demonstrated support for the primary argument of Texas lawmakers. Thus, in front of a Supreme Court with a strong conservative majority, the Texas bill will likely be upheld.

Future Effects

In 2012, President Obama criticized the Arizona law, arguing that “no American should ever live under a cloud of suspicion just because of what they look like” (Liptak, 2012). He and many others highlight how restrictive immigration policies can be racist, discriminatory, and inhumane. If the Texas bill passes and is upheld by the court, these concerns will only deepen. Hispanics are already the prime target for suspicion of being undocumented; the neighborhoods that were flagged for patrol are primarily Hispanic communities (Serrano, 2023). Furthermore, any provisions for immigrant children, sexual assault victims, and human trafficking victims were struck from the bill (Houghtaling, 2023). The humanity that remained in the immigration process for victims has been entirely eradicated, replaced by growing danger for not just migrants, but all Hispanic and Latinx communities.

The brutality of the bill is also a testament to how Texas is writing ineffective legislation. While lawmakers may claim that the asylum process has been unaffected, the Texas bill undermines the process by removing all migrants, including asylum-seekers. Furthermore, by forcing all undocumented immigrants to return to Mexico, regardless of their country of origin, the bill sours relations with the Mexican government. Mexican officials have already responded to the bill, reiterating their “rejection of any measure that contemplates the involuntary return of migrants without respect for due process” (Garcia, 2023). Prioritizing the harsh removal of immigrants has led to a bill that will fail to effectively accomplish what the Texas government set out to do.

Many Republican and conservative states like Texas, regardless of whether they are classified as border states, have enacted harsh policies since the Arizona law was passed. Therefore, there is strong reason to believe the Texas law would be replicated in other anti-immigration, conservative strongholds, including Florida, Iowa, and Oklahoma if upheld by the Supreme Court (Maranon, 2023). If replicated throughout the country, the estimated impact of the bill could increase from the 1.6 million undocumented immigrants in Texas to over 10 million migrants (Juell, 2023). To prevent a future of brutal and ineffective border policy countrywide, this bill must be stopped before Texas Governor Greg Abbott can sign it into law.

Conclusion

Despite precedent preventing the actions of Texas lawmakers, the Supreme Court’s new ideology signals a new era for immigration policy. With the bill, the danger for undocumented migrants increases not just in Texas, but in states across the country that have already expressed harsh views on border control. When a Houston Hispanic Democrat exclaimed, “my community is being attacked,” he highlighted the racial targeting that Hispanic Texans will face under the law (Goodman, 2023). If the bill is to make it to the Supreme Court, striking it down seems unlikely. Therefore, as the bill is likely to be signed into law by Governor Abbott in the coming weeks, it reminds the country that bills like this must be protested from the moment they are proposed. Citizens must be cognizant of policy developments for crucial issues like immigration and make their disapproval known, encouraging their representatives to vote against the proposals. Now, as the bill makes its way through the Texas government, and eventually to the Supreme Court, it will spark agitation throughout the country.

The views expressed in this publication are the author’s own and do not necessarily reflect the position of The Rice Journal of Public Policy, its staff, or its Editorial Board.

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References

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