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Republican states watch Texas immigration legal saga

Legal experts question courts’ expanding influence in crafting immigration policy

From left: Gov. Doug Ducey of Arizona, Gov. Mark Gordon of Wyoming, Gov. Pete Ricketts of Nebraska, and Gov. Kim Renyolds of Iowa behind Gov. Greg Abbott of Texas during a news conference in Mission, Texas, Oct. 6, 2021 Getty Images/Photo by Sergio Flores/Bloomberg

Republican states watch Texas immigration legal saga

Iowa is on the verge of an illegal immigration crackdown. Legislators sent a bill to Republican Gov. Kim Reynolds’ desk last week that parallels a Texas immigration law currently tied up in court. Reynolds indicated she will sign the bill that allows state law enforcement to arrest immigrants who were previously denied entry into the United States and permits local judges to order them back to their country of origin.

The Texas law was originally set to go into effect March 5. But the state still cannot enforce the initiative due to back-and-forth court decisions. At the center of the legal wrangling are constitutional questions about state authority over immigration and whether the situation at the U.S.-Mexico border justifies Texas Gov. Greg Abbott’s initiative.

Republican-led states weighing their own immigration measures are watching the legal battle that will likely arrive back at the Supreme Court. And immigration experts are pointing to the dispute as another example of the ever-expanding role of the courts in determining immigration policy amid a lack of compromise in Congress.

Iowa’s pending immigration law creates a new crime of “illegal reentry” and directs state and local law enforcement to arrest immigrants who enter the state if they were previously deported or turned away at the border. Offenders could be charged with an aggravated misdemeanor punishable by up to two years in prison or a class D felony, which carries a five-year prison sentence.

“President Biden and his administration have failed to enforce our immigration laws and, in doing so, have compromised the sovereignty of our nation and the safety of its people,” Reynolds said in a statement about the bill. “States have stepped in to secure the border, preventing illegal migrants from entering our country and protecting our citizens. Americans deserve nothing less.”

Also taking their cue from Texas, Louisiana lawmakers will soon consider a bill that allows state law enforcement to arrest immigrants if they suspect them of residing in the state illegally. Ariz. Gov. Katie Hobbs vetoed a similar law at the beginning of March, though some Republican lawmakers say they will fight to put the measure on the ballot in November. The law would make it a class 1 misdemeanor to cross the border between a port of entry. Offenders would spend six months in jail unless they agreed to return to Mexico.

Republican lawmakers in Kansas overrode Gov. Laura Kelly’s veto to pass a bill that criminalizes the transportation of illegal immigrants into the state. In Oklahoma, the Republican speaker of the House said he plans to introduce an immigration measure similar to Texas’ controversial law. “The failed policies of the Biden administration have turned every state into a border state,” Speaker Charles McCall said during his announcement.

Florida began enforcing a law last summer that makes it a third-degree felony to transport any illegal immigrant into the state. It also requires healthcare facilities to gather data about an individual’s immigration status and mandates all public agencies and private businesses with more than 25 employees to submit information about new hires to E-Verify, a program that checks an employee’s I-9 form with government records. A coalition of advocacy groups challenged the law in court, arguing the law is unconstitutionally vague and hurts immigrant communities throughout the state.

In Texas, Abbott encountered similar criticism when he signed Senate Bill 4 in December. Critics say the legislation will lead to unfair discrimination against immigrant communities and is an unconstitutional abuse of power since immigration policy falls within the federal government’s jurisdiction.

The Texas Department of Public Safety clarified that, if the law goes into effect, officials would mainly use it along the U.S.-Mexico border where they can see whether someone crossed illegally. But the law will still be used in the state’s interior if an individual is arrested for a violent crime and is living in Texas illegally, a spokesperson explained. The agency also said they would not prosecute families and would instead hand them over to Border Patrol for processing.

Abbott points to the Biden administration’s failure to quell a record-breaking surge in illegal crossings on track to hit 2 million this year for the third time in a row. Border Patrol Chief Jason Owens recently described the southern border as a “national security threat,” pointing to the estimated 140,000 immigrants who evaded capture over the past five months.

The Lone Star State’s border towns have borne the brunt of the influx as the migration stream shifts between border regions, reflecting changing migrant demographics, weather patterns, or the latest information peddled by human smugglers. Last month, Customs and Border Protection documented 189,922 attempted crossings—a record for February. Crossings have fallen near Eagle Pass, an area once the epicenter of the border crisis, which Abbott attributes to intensifying state enforcement efforts in the area.

Scott Andrew Fulks, an immigration attorney with Deckert Law, is confident the justices will find Texas’ law unconstitutional if it makes it back to the Supreme Court. The high court previously ruled in 2012 against an Arizona law requiring immigrants to carry immigration documents and directing law enforcement to arrest anyone suspected of entering the country illegally. Other cases stretching back to the 1800s have affirmed federal authority over immigration policy. For instance, in 1876, the Supreme Court ruled New York could not mandate shipping merchants to pay fees based on the number of immigrants they carried when they arrived in port.

“Essentially, a decision in favor of SB 4 will create legal precedent leading to a broken map of states where immigrants will have to go around other states to be able to travel through to another state,” said Fulks.

Justice Amy Coney Barrett urged the 5th Circuit Court of Appeals to decide quickly whether the law should go into effect while it weighs the law’s constitutionality. After reinstating a stay on the law, the appeals court ruled on Tuesday that Texas cannot implement the law until the courts decide whether the measure is legal.

“The Supreme Court emphasized the short time frame for the 5th Circuit to make a decision, so a decision should not be far away,” said Fulks. “Of course, it will then go straight back up to the Supreme Court one way or the other.”

The courts must also weigh foreign policy considerations, said Kathleen Bush-Joseph, an immigration lawyer and a policy analyst for the Migration Policy Institute. Mexico filed an amicus brief with the 5th Circuit Court of Appeals, arguing Texas’ law would interfere with Mexico’s right to determine its entry policies as well as hinder cross-border trade and U.S.-Mexico collaboration on legal migration.

“In the Remain in Mexico case, that was a big determinant why the Supreme Court ruled in favor of the Biden administration,” Bush-Joseph said. Deciding against a coalition of Republican states, the court said the Biden administration could end former President Donald Trump’s so-called “Remain in Mexico” policy, which required asylum-seekers to wait in Mexico until officials decided their cases. In the majority opinion, the justices argued the courts should not interfere with the president’s authority over foreign policy.

“In the face of congressional inaction, the courts are having to decide nationwide immigration policy, because the lower level, individual judges are blocking nationwide policies,” she said. “And then these appellate courts are having to turn around and make these really impactful decisions.”

The Fifth Circuit Court of Appeals will hold another hearing to discuss the law’s constitutionality next week. In the 2-1 ruling to extend a temporary hold on the law, Judge Priscilla Richman, a George W. Bush appointee, indicated the court is likely to find the measure unconstitutional.

“For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power,” she wrote. “Texas, nobly and admirably some would say, seeks to fill at least partially the gaping void. But it is unlikely that Texas can step into the shoes of the national sovereign under our Constitution and Laws.” 

Fulks with Deckert Law said that allowing states to craft their own immigration legislation would breed chaos. “I just can’t imagine the Supreme Court cutting up the country in that way for immigrants,” he said. “It just isn’t practical.”

Addie Offereins

Addie is a WORLD reporter who often writes about poverty fighting and immigration. She is a graduate of Westmont College and the World Journalism Institute. She lives in Austin, Texas, with her husband, Ben.

You sure do come up with exciting stuff to read, know, and talk about. —Chad

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