A Texas bill that makes it a state crime to cross the border at any location besides a port of entry could set up Texas’ next legal fight with the Biden administration.
The Texas House voted on a border security package Thursday, approving 84-60 a bill that enables local police to arrest or send back illegal migrants who cross the border. If passed by the Senate and signed by Republican Gov. Greg Abbott, it could set up another big fight with the Biden administration over the border.
While it’s already a federal crime to improperly enter the United States, the Biden administration hasn’t been widely enforcing it.
“The core question is whether the states can make it a crime to violate federal immigration law, and detain an alien for violating that law,” Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said in a statement provided to the Daily Caller News Foundation.
In 2012, the Supreme Court ruled 5-3 that Arizona’s state immigration laws, including one making it a crime to be in the state without authorization, were preempted by federal law.
Chuck DeVore, Chief National Initiatives Officer at the Texas Public Policy Foundation, told the DCNF that the measures in Texas’ bill are “fundamentally different” than the ones in the Arizona law struck down by the Supreme Court. In Arizona’s case, the state was “essentially affirmatively enforcing federal immigration law insofar as asking people for their status and then acting upon that,” he said.
Texas’ bill instead allows law enforcement who observe people crossing illegally to give those individuals a choice: go back to Mexico or face arrest for being in Texas illegally.
Republican state Rep. David Spiller, who sponsored the bill, told the Texas Tribune that there is “nothing unfair about ordering someone back from where they came if they arrived here illegally.”
Potential legal challenges in this situation depend on whether the Biden administration’s Department of Justice or a third party chooses to bring them, DeVore said, noting “cooler heads” may opt not to challenge the law and risk losing at the Fifth Circuit and Supreme Court.
“It all depends on the legal calculation of those who would prefer to have a completely unchecked border under this administration,” he said.
The Biden administration has already challenged some of Texas’ other efforts to secure the border. In July, the Biden administration filed a lawsuit against Texas over a floating buoy barrier it placed in the Rio Grande River.
Texas also sued the Biden administration Oct. 24 over the federal government’s practice of cutting the barbed wire Abbott instructed state authorities to place along the border in response to increased illegal crossings.
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