Gov. Greg Abbott is expected to soon sign an immigration enforcement bill into law. Senate Bill 4 was passed by the state House and Senate during the legislature’s 4th special session.
The bill would make illegally entering the United States a state crime. However, the bill is expected to immediately face legal challenges.
“This is a recognition of the obvious that the federal government has walked away from their responsibilities on the border,” said State Sen. Paul Bettencourt/(R) Dist. 7.
Bettencourt, who is a co-author of Senate Bill 4, cites the more than 6.5 million immigrants caught illegally trying to enter the US or deemed inadmissible to the country over the last three fiscal years, according to Customs and Border Protection data.
“When you’ve got 10,000 crossings a day, something has to give here, and the fact of the matter is the federal government is refusing to take their responsibility seriously,” said Bettencourt.
The bill would make illegally entering the US a Class B misdemeanor in Texas. Charges and penalties under this bill are increased if a person has been previously convicted of this crime, previously deported from the United States, previously denied entry to the country or convicted of committing other crimes while in the U.S. The bill reads a defense to prosecution if a person has already been processed by federal authorities and allowed to remain in the U.S. while their case is pending in immigration court.
The bill also gives Texas judges the ability to dismiss this charge in exchange for ordering the person to return to the foreign country they last traveled through before illegally entering the U.S. However, the bill reads the person charged under this law would have to agree to the removal order before it can be issued. If the person later refuses to comply with a removal order, they can be charged with a second-degree felony. Bettencourt said he knows the bill will be challenged in court since immigration enforcement is under the purview of the federal government.
“The argument will be that this law infringes upon federal immigration law,” said Josh Blackman, a constitutional law professor at the South Texas College of Law. “As a general matter, when the state law conflicts with a federal law, the state law is unconstitutional.”
Blackman said Texas lawmakers know the U.S. Supreme Court already knocked down a similar law in Arizona in 2012 but adds that the case didn’t fully settle the legal argument of whether states can enact and enforce their own immigration measures.
“So it’s possible the court may come out differently today than it did a decade ago. Also, we have a lot of experience with what immigration law looks like today versus 10 years ago, and maybe people might see things a little bit differently,” said Blackman.
Bettencourt said he welcomes the legal challenge.
“I think that we owe it to not only ourselves, but, quite frankly, the rest of the country to pass a bill that does what the federal government is refusing to do. This is going to clearly work its way through the courts, I think, all the way to the Supreme Court and then we’ll wait to see what the answer is,” said Bettencourt.
Veteran immigration attorney Charles Foster said the bill raises several questions about implementation and fiscal impact. He said it is unclear whether immigrants charged under this bill would be allowed to make an asylum claim as is allowed by federal law. He also questions the impact on state courts from thousands of people being charged under a new law and how much will it cost taxpayers to provide court-appointed defense attorneys.
“It’s going to be more of a political statement to satisfy the base that they’re doing something about this problem,” Foster said about Senate Bill 4. “You have to ask yourself, ‘Do they really want to implement that?’ because the Texas economy, for one, depends a great deal on immigrant labor.”
Senate Bill 4 reads enforcement is prohibited at public and private secondary schools, established houses of worship and healthcare facilities.
“I don’t think anybody knows what it’s going to be. I think we see what we see on paper, but then, in action, is what is it really going to be or what’s it going to be like? So I think there’s a lot of uncertainty right now,” said Cesar Espinosa, executive director of FIEL.
Espinosa said this bill highlights continued Congressional inaction on immigration reform will only further create confusion and divisiveness around these issues.
“At the end of the day, we hope that these bills that are being passed at the state level remind Congress that they need to act, but it doesn’t look like it’s going to happen anytime soon, unfortunately,” said Espinosa.
When the bill passed the House on Nov. 14, Mexico’s government issued a statement rejecting the proposed measure.
“The Government of Mexico recognizes the sovereign right of a country to determine the public policies that are implemented in its territory. Nevertheless, it respectfully expresses its own legitimate right to protect the rights of its nationals in the United States, and to determine its own policies regarding entry into its territory,” read a news release.
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