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Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officials Thursday to detain and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law – a federal responsibility.
The order comes days after a group of right-wing officials in Texas — along with several former Trump administration leaders and U.S. Rep. Chip Roy (R-Tex.) — asked the Republican governor to invoke the state and U.S. constitutions in announcing the “invasion” on the southwest border and to use his forces to repel it. Leaders in sparsely populated counties near the Mexican border complain they are overwhelmed by smuggling attempts and a growing number of migrants evading detection.
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 national office, in a broader drama filled with anti-immigrant rhetoric and legally questionable actions designed to challenge the federal government’s exclusive powers over immigration enforcement – potentially all the way to a conservative majority US Supreme Court.
“I think with the current precedent, it’s pretty clear that this is the type of decision the federal government needs to make,” said Steve Vladek, a professor at the University of Texas Law School. “But I also think that the most appropriate Supreme Court precedent may be the goal of this policy.”
In 2012, the Supreme Court ruled on a series of immigration-related laws, including SB 1070, or the Show Me Your Documents Act, passed by the Arizona Legislature, affirming that states cannot enforce their own immigration laws.
“I can’t think of a legal argument that the governor of Texas would be allowed to engage in unilateral immigration enforcement,” said Denise Gilman, director of the Immigration Clinic at the University of Texas at Austin. “We don’t want every state to enforce its own immigration laws.”
Busing migrants, halting trade: Abbott stakes future on divisive border plans
But Texas has poured billions, including by diverting federal funding for coronavirus relief, into its border crackdown, sending thousands of National Guard troops and ordering Department of Public Safety officials to help patrol and arrest migrants in South Texas. With each new step, Abbott tries to blur the lines between federal and state power. The state bussed migrants to Washington, halted commercial traffic on international bridges for what critics called unnecessary inspections, challenged the Biden administration in court and emptied state prisons to detain migrants. He is also raising 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 come up with now. His so-called Operation Lone Star put National Guardsmen and law enforcement in dangerous situations and led to a logistical nightmare in need of a federal bailout, and his secondary inspections of trucks crossing into Texas cost a billion dollars a week in trade alone. one bridge without a single case of human or drug trafficking emerging,” White House spokesman Abdullah Hassan 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 have opened an investigation into Abbott’s program, but Justice Department officials did not respond to questions about the scope of their investigation. But a federal watchdog is reviewing Abbott’s transfer of about $1 billion in relief funding to pay for the initiative.
“It’s all a show,” said Claudia Munoz, whose Texas-based group Grassroots Leadership maintains a hotline for migrants detained by state officials on charges of trespassing. “But it’s also more than symbolic because he’s putting money behind it. Texas is testing the various ways it can take control of the immigration system, and the federal government is letting them get away with it.”
The governor has repeatedly accused the Biden administration of encouraging the growing 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 law enforcement officials in San Antonio found dozens of dead and dying migrants abandoned in a sweltering tractor trailer last month.
“As President Biden refuses to do his job and enforce the immigration laws passed by Congress, the state of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a statement. “As the challenges along the border continue to grow, Texas will continue to take action to address these challenges brought on by the Biden administration.”
But the Biden administration has largely retained — forced by court order — border policies enacted during his predecessor’s tenure, including a public health order that deports most border crossers and the Migrant Protection Protocols, or Return to Mexico program “. The Supreme Court last month allowed the Department of Homeland Security to end the policy. White House officials and Democrats called Abbott a hypocrite for not making similar criticisms of Trump.
The wording of Thursday’s executive order is unclear about what “returning migrants to the border” means for soldiers and the soldiers who detain them. Under the current operation, people caught on private land are arrested and transferred to a state prison. Advocates 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 turned over to federal authorities for deportation or expulsion.
The state of Texas does not have the power to deport. Abbott spokesperson Renae Eze explained that “illegal immigrants will be returned/transported back to the border of [ports of entry].”
“It’s discriminatory and it violates civil rights,” said Laura Peña, legal director of the Texas Civil Rights Project’s Beyond Borders program. “This is just another escalation of the underlying racism and xenophobia that Abbott is fueling, and it could have deadly consequences.”
But at least one jurisdiction in Texas has already begun to take matters into its own hands. Kinney County, a rural South Texas farming community 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 increase the state’s border security offensively. The expansion of the campaign in the district has attracted the attention of all the conservative media.
This week, the county’s top elected official, Tully Shahan, gathered a group of rural Texas sheriffs, elected leaders, Roy and former Trump administration officials Mark Morgan and Ken Cuccinelli to say their communities are “at war” and that Biden is the “destruction of Western civilization.” The district is also involved in federal litigation over policy priorities and directives to U.S. Immigration and Customs Enforcement that it says impair agents’ ability to enforce the law, represented by Kris Kobach, a former Kansas secretary of state , known for hardline views against illegal immigration.
Kinney County Sheriff Brad Coe initially told conservative media last month that he had deported four migrants after US Border Patrol agents failed to arrest them. He later changed his account, explaining that the people were involved in a smuggling incident that ended in a crash. Coe, a retired Border Patrol agent, said he didn’t have a safe place for them in the county jail, so he loaded the migrants into his truck, drove to Eagle Pass, Texas, the port of entry, and dropped them off.
“Coe took them to the bridge and they went to Mexico and he’s going to do it again,” said Matt Benacci, Sheriff’s Department spokesman. “Border Patrol wasn’t going to take them, so he made the best decision he could to keep them under safe circumstances.”
Attorney Catherine Dyer, who unsuccessfully sued Coe over his detention of migrants, said the county was a willing facilitator of Abbott’s agenda. But she said the danger comes when other jurisdictions take note and copy.
“Kinney has taken that leadership role,” she said. “We are already seeing this plan and the formulation of these issues in other countries. When you have one state ignoring the line between federal and state jurisdiction, it puts all of us at risk of ignoring the law in the future.
While Abbott’s move was met with approval by hardliners on the right, the governor did not do what the small group of Texas sheriffs and elected leaders had asked: declare an invasion.
“We recognize Governor Abbott’s recognition that the facts on the ground along the border are consistent with the Constitution’s understanding of an invasion,” Cuccinelli, President Donald Trump’s homeland security official, said in a joint statement with Russ Vought, president of the conservative Center for Renewal of America. But they said Abbott’s move did not go far enough and amounted to little more than catch and release.
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