The legal and political battle over who controls the U.S. southern border has intensified in Texas and beyond. On one side is the Republican-led state of Texas, which enacted Texas SB4, a bill that authorizes state and local officials to deport migrants at the U.S. border with Mexico. On the other is the Biden administration, which has gone to federal court to challenge the constitutionality of the law. The administration argues that federal immigration laws trump any state effort to usurp authority at the border.
This is not the first time, however, that states and localities have become involved in pursuing immigration policies. Here’s what you need to know about the current conflict in Texas and what political scientists can tell us about these sorts of disputes.
What would the Texas law do?
Senate Bill 4 (SB4) criminalizes the illegal entry of unauthorized entrants into Texas. A special session of the Texas legislature passed the bill in November 2023, anticipating that the new rules would enter into force on March 5, 2024.
According to the bill language, SB4 seeks to undermine “sanctuary city” policies in Texas, where local jurisdictions act to prevent local law enforcement from inquiring about immigration status or complying with federal detainer requests.
SB4 seeks to prevent Texas cities and local government entities from blocking the enforcement of state and federal immigration laws. It introduces new state-level directives to regulate law enforcement duties, immigration detainers, and the release of immigrants into federal custody. SB4 also outlines consequences for local entities that refuse to comply, mainly the denial of state funds.
So why is SB4 so controversial?
SB4 allows the state government to do the federal government’s job of enforcing immigration policy. The new rules allow the Texas state government to arrest, detain, and deport immigrants – responsibilities that fall under federal powers.
The Biden administration filed a lawsuit against Texas earlier this year. The Department of Justice argued that SB4 violates the U.S. Constitution by interfering with federal immigration laws. For example, SB4 orders Texas law enforcement to arrest people for crossing without authorization and allows state judges to deport people who have been found to cross without authorization. These two responsibilities have been under the federal government’s authority since the 1800s.
Texas defended SB4, citing increased unauthorized crossings. Governor Greg Abbott claims that federal legislation and inaction have encouraged criminal activities and unauthorized crossings, creating a situation where the Texas government has the right to defend itself from these dangers. According to Abbott, Texas has the right to make crossing the border a state crime, which means state law enforcement should be able to arrest and prosecute undocumented immigrants, which is a direct violation of federal immigration policy. The Biden administration argues in response that SB4 violates the Constitution’s supremacy clause, which says that federal laws, like laws about immigration, preempt any conflicting state laws.
While Governor Abbott has defended SB4 as necessary to address illegal immigration, Texas is pursuing other aggressive measures that have also drawn the ire of the federal government. These include Operation Lonestar, which challenges federal immigration policy and implements its own enforcement tactics.
What have the courts done?
In response to the Biden administration’s lawsuit, in February, a U.S. District judge blocked SB4, agreeing with the Biden administration that SB4 undermined federal immigration regulation and opened the door for other states to make their own immigration policies.
Texas Attorney General Ken Paxton appealed this decision to the U.S. 5th Circuit Court of Appeals, who reversed the district court ruling. The Biden administration then appealed to the Supreme Court, which issued a temporary stay on SB4 until March 18 to allow SCOTUS to consider the situation.
Federal attorneys have cited the 2012 Supreme Court ruling in Arizona v. the United States, which reviewed an Arizona law seeking to designate state-level immigration crimes and authorize local law enforcement to verify citizenship and detain suspected undocumented immigrants. The Supreme Court invalidated most of the Arizona law in a 5-3 decision for the federal government.
In December, immigrant rights groups, with the American Civil Liberties Union, ACLU of Texas, and the Texas Civil Rights Project, also sued Texas over SB4 on behalf of El Paso County. Civil and immigrant rights groups argue SB4 and similar bills increase racial profiling and complicate asylum cases.
On March 19, the Supreme Court ruled 6-3 to lift the stay on SB4, allowing Texas to enforce its controversial law. The court eschewed discussions of constitutionality and argued instead that the appeals court didn’t follow the correct procedure when reversing the district judge’s order to block SB4 from going into effect. Conservative justices Amy Coney Barrett and Brett Kavanaugh argued that the Supreme Court shouldn’t intervene as the lower court’s order was temporary and part of its docket management. Liberal justices Sonia Sotomayor and Ketanji Brown Jackson argued lifting the stay would cause confusion and disrupt federal immigration enforcement – and said the 5th Circuit didn’t give a good enough reason to lift the earlier stay placed by the district court.
To add to the judicial chaos, a panel of the 5th Circuit appellate court immediately blocked the law from being enforced. That same panel held a hearing on the bill in early April as it decides whether to allow SB4 to move forward. In the meantime, the Texas law remains in limbo.
States have a history of acting on immigration issues
Throughout American history, states have tried to impose their own immigration policies and have influenced the creation of federal immigration policy. These efforts have included state responses to immigration enforcement and public benefits. As I’ve detailed here at Good Authority, inclusionary policies like in-state tuition have also come under fire. For example, Utah, California, and Texas allow undocumented students to pay in-state tuition at state public colleges and universities. At the same time, Alabama and Georgia explicitly forbid undocumented immigrants from attending public colleges and universities.
In 2020, 4 out of 15 Arizona counties signed onto 287(g), a program that deputizes local law enforcement to perform certain functions of federal immigration officials. In Florida, 49 out of 76 counties signed onto 287(g). No counties in California, Connecticut, or Delaware signed on to the program, which has been in effect for over 20 years. Critics claim the 287(g) program is expensive and heavy-handed, threatening community safety and eroding public trust in law enforcement.
Uneven immigration policy is a worry
One of the biggest concerns that arise from decentralizing control of immigration policy is the uneven application of immigration policy. First, what constitutes a “sanctuary city“ varies by state and locality. Generally, this term defines the extent to which a jurisdiction will cooperate or involve itself in federal immigration enforcement actions (e.g., detention, deportation). Some localities actively pursue unauthorized immigrants, while others take a more hands-off approach.
Efforts also vary by the type of law enforcement agency. For example, local police are more likely to oppose policies like SB4 because these efforts have proven ineffective in reducing crime – and make immigrants less likely to report crimes, which increases the number of unreported crimes. Sheriff’s offices, however, have generally been supportive of laws like SB4, with the exception of places with higher percentages of Latino or immigrant communities.
For laws like SB4, uneven enforcement varies greatly, raising concerns about the extent to which immigrants can enjoy their civil rights based on where they live. This creates uncertainty for immigrant communities. As recent research shows, this uncertainty can lower trust in government and reduce incentives for immigrants to assist or participate with law enforcement or their agents. This behavior, known as a “chilling effect,” makes immigrants (documented or not) less likely to report crimes, work with law enforcement, or apply for state and federal assistance programs for which they or their family members are eligible.
Latinos now account for 40% – the largest share – of the 28 million people who live in Texas, and the wider concerns over enforcement put SB4 in the spotlight. An estimated 5 million immigrants in Texas, along with immigrants and Latinos in other states across the country, all now wait to see what happens on SB4.