Written by Chelsie Kramer, Texas State Organizer and Emma Winger, Deputy Legal Director 

Texas is once again making national headlines after a woman and two children drowned in the Rio Grande while attempting to cross the river on January 12. The horrific event is just the latest in a long stream of intensifying disputes about how to address immigration along the Texas-Mexico border and a grim reminder of the deadly consequences of our failing immigration system.

Just one week before the tragic drowning, Texas Governor Abbott reiterated his anti-immigrant stance during a radio interview, stating the only action the state isn’t taking is “shooting people who come across the border.” He cited concerns about murder charges from the Biden administration. Abbott elaborated on the state’s actions along the border by touting the passage of the hotly debated Senate Bill 4 or “improper entry bill.”

What Is SB 4?

Governor Abbott signed SB 4 into law during a trip to the Texas-Mexico border on December 18. Among other measures, the law allows for Texas police officers to detain and arrest individuals suspected of entering the U.S. without authorization.

Despite becoming law, SB 4 was unpopular among some Texas lawmakers. Republican Senator Birdwell—who had sponsored previous versions of the bill—ultimately believed SB 4 violated the U.S. Constitution.

Debate around the bill showed the profound misunderstanding many Texas senators have of U.S. asylum law and interactions along the southern border. It ended with Senator Birdwell standing before his colleagues giving an impassioned speech quoting from the U.S. Constitution, emphasizing “all power and responsibility for immigration is delegated to the federal government.” He criticized his colleagues for supporting “short-term messaging gain” during an election year, rather than their oath of office.

Over a hundred organizations, including the American Immigration Council, signed a joint statement that outlined the myriad legal and humanitarian issues with SB 4 and urged Governor Abbott not to sign the bill. Additionally, thirty former immigration and appellate immigration judges released a statement explaining that SB 4 is unlawful.

Lawsuits Against SB 4

The federal government and immigration advocates have not sat idly by while Texas attempts to create its own immigration system.

On December 19, the day after Government Abbott signed the law, two legal services providers and the County of El Paso sued Texas officials in a Texas federal court to stop them from enforcing the law.

Then, on December 28, the U.S. Department of Justice (DOJ) sent a letter to Governor Abbott warning him that SB 4 violates the U.S. Constitution. DOJ advised that it would sue unless the governor promised not to enforce the law by January 3.

Needless to say, Governor Abbott did not make that promise and on January 3, the federal government brought its own lawsuit to stop the law.

Both lawsuits argue that SB 4 violates the Supremacy Clause of the U.S. Constitution, which says that states must follow federal law as “the supreme Law of the Land.” Congress has enacted a complex legal system that sets out, among other things, the appropriate penalties for illegally entering the United States, the grounds for removing a noncitizen already in the United States, and the rights of someone facing removal – including the right to contest removal and to seek protection from persecution.

In a case called Arizona v. United States, the Supreme Court made clear: federal immigration law “preempts” or prevents any state immigration enforcement scheme.

SB 4 is blatantly unlawful under these well-established principles. DOJ explains how SB 4 undermines the federal government’s immigration operations and foreign relations. Its lawsuit includes a long list of concerns, including:

  • Undermining the federal government’s ability to enforce federal immigration law. SB 4 calls for deporting noncitizens before the federal government is able to screen and process them and results in a state-issued deportation order that doesn’t comply with federal law and can’t be enforced by the federal government.
  • Interfering with the United States’ important and complex relationship with Mexico. SB 4 requires Texas officials to deport non-Mexican citizens to Mexico – a plan the Mexican government opposes. A standoff between Texas and Mexico undercuts the federal government’s diplomatic relationship with an important neighbor.
  • Preventing the United States from meeting its treaty obligations and violating federal immigration law that protects individuals fleeing persecution or torture. SB 4 requires the removal of noncitizens without giving them an opportunity to apply for asylum or other forms of protection. But the United States is a party to the United Nations Convention Against Torture and has enacted laws that forbid deporting a person to a country where they are likely to be tortured or face persecution.

Both lawsuits are in their early stages. It remains to be seen what the federal district court will do – and almost certainly the losing party will appeal to the U.S. Court of Appeals for the Fifth Circuit. Texas Attorney General Paxton has said he wants to challenge the Supreme Court’s decision in Arizona. This may be another case where the highest court has the last word in a case pitting Texas against the United States.

The stakes are high. If allowed to stand, other states might set up their own immigration enforcement schemes, splintering the already complex immigration system and leading to widespread arrests and deportations without key federal protections.