Texas Gov. Abbott doubles down as GOP states go to war over immigration policy—04-15-22

Immigration news, in context

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This week’s edition:

• In The Big Picture, we examine Greg Abbott’s latest move to use state resources to battle with the Biden administration on immigration.

• In Under the Radar, we discuss a grant of Temporary Protected Status to Cameroonians.

• In Next Destination, we look at the latest in a long string of attempts to reach a bipartisan immigration reform deal.

The Big Picture

The news: Texas Gov. Greg Abbott has practically triggered a diplomatic incident with a trade blockade on the southern border as he ramps up political antics in his fight with the federal government over immigration. These antics also include busing migrants to Washington D.C. Meanwhile, over 20 states are now suing the administration over the planned termination of the Title 42 order.

What’s happening?

Frequent Biden antagonist and anti-immigration fanatic Greg Abbott has snarled incoming commercial traffic along the border with heavy-handed inspections by state personnel. This move has received surprisingly little mass media coverage for being a state governor directly interfering with international trade policy. The inspections, which the governor first ordered last week, are ostensibly an effort to interdict smuggled people and narcotics into the United States—a task that is very explicitly a function of the federal government.

It’s not the first time in recent history that Abbott has directly attempted to usurp federal functions related to immigration and the border. Last year, he launched the disastrous Operation Lone Star, which utilized state law enforcement and National Guard units to de facto conduct immigration enforcement by arresting migrants for trespassing. The effort was plagued by operational, legal, and communications problems, including a judge’s finding that at least one arrest was unconstitutional (more on all that below), but that apparently did not dissuade Abbott from pulling a similar stunt with the inspections.

Immediately and predictably after the order came down, traffic at various ports of entry ground to a near-standstill as north-bound truckers found themselves contending with two inspections: the regular one by federal customs officers, and then the secondary, redundant one by Texas state law enforcement, for whom this is a somewhat slapdash mission for which they likely haven’t been properly trained or equipped. The delays were then compounded by protests by Mexican drivers frustrated over the obstruction, which had led to canceled orders and spoiled produce. Truckers blockaded several ports, bringing all northbound traffic to a halt.

The blockades were ultimately ended by the protesting truckers. On Wednesday, Abbott announced he would be suspending state inspections at the Laredo–Colombia Solidarity International Bridge following negotiations with the governor of the Mexican state of Nuevo León, whose governor pledged to increase security on his side of the border. Still, Texas inspections remain at several other ports, including at the Pharr-Reynosa International Bridge, one of the busiest crossings for cross-border trade. So far, the Biden administration has been somewhat muted in its response to this provocation, particularly as it’s become an international fracas and is threatening to further disrupt vital supply chains and drive up food prices, ostensibly one of the president’s main priorities.

White House Press Secretary Jen Psaki said Wednesday that “legitimate trade and travel and CBP’s ability to do its job should not be obstructed. Gov. Abbott’s actions are impacting people’s jobs, and the livelihoods of hard-working American families,” a lukewarm condemnation that didn’t come with any official action. The legal questions here are somewhat murky. Texas does, of course, have the authority to conduct vehicle inspections on its territory, but plenty of federal precedent establishes the federal government as the only entity able to regulate international trade, and it comes back down to the question of whether this is an effort to wrest a federal function away from the federal government.

Not to leave the goading just to the border, Abbott then launched a separate initiative to bus migrants from Texas to Washington, D.C, quite explicitly to punish Biden officials for the impending termination of Title 42. Abbott’s office said that it was part of the governor’s “response to the Biden Administration’s decision to end Title 42 expulsions.” The first bus arrived Wednesday, carrying about 30 people from Colombia, Cuba, Nicaragua, and Venezuela.

Somewhat comically, the migrants themselves viewed the effort as largely a convenience, ferrying them most of the way to their destinations—many were headed to Florida—on Texas’s dime. Authorities and nongovernmental organizations in D.C. were happy to receive the migrants and help them coordinate the next leg of their travel, neatly demonstrating that taking basic practical and logistical steps can in fact avoid the perception of chaos that Abbott appears so concerned about.

Nonetheless, it’s a clear sign that Abbott has no intention of letting up in his overarching plan to utilize state resources to interfere with the federal government’s immigration and border enforcement operations, particularly in ways that will provide a nice visual for his intended audience of Fox News viewers. It’s no secret to anyone that Abbott’s got broader political ambitions, and he’s well aware that immigration is a political conversation that is both highly emotional and often wholly divorced from both the facts on the ground and the specifics of the law itself.

While his are the most dramatic and direct interventions to tangle with the feds on immigration, Texas is by no means the only state doing battle with Biden. As was broadly predictable upon the announcement that Title 42 would be ending in late May, states have sued the federal government to stop it. A lawsuit initially brought by Arizona, Missouri, and Louisiana (the latter two of which are, amusingly, not border states) has now been joined by 18 others, for a total of 21 states challenging the administration’s plans (curiously not including Texas, though the state has previously challenged aspects of how Title 42 was being implemented). They are broadly rehashing arguments that have been used before—that the administration is ignoring obligations delineated in immigration, that it made the decision in a way that was arbitrary and capricious, and that it is not considering the fiscal impact that increased immigration has on states.

How we got here

This isn’t Abbott’s first stunt. In March 2021, the Texas governor rolled out Operation Lone Star, a multi-state effort in which several state governments sent forces to the Texas-Mexico border. Texas, Arizona, South Dakota, Iowa, and Arkansas deployed their National Guard troops; Florida, Ohio, and Nebraska sent state highway patrol troopers. Since most of Texas’s border with Mexico is privately-owned land—and since state and local police generally can’t enforce federal immigration law—the troops sent to the border were tasked with arresting anyone they suspected of being a migrant for trespassing. 

By September of last year, the state had arrested almost 6,000 migrants under Operation Lone Star, according to Texas Public Radio. Migrants were initially sent to the Briscoe Unit, a state prison in Dilley that had been emptied prior to the implementation of Operation Lone Star. But when Briscoe, which has a capacity of about 1,000 people, was full, Abbott expanded Lone Star to the Segovia Unit state prison in Hidalgo County. 

Abbott claimed these measures were needed to “crack down on illegal border crossings” in Texas, but the National Guard troops and police officers at the border legally could not enforce immigration law. The trespassing charges were a workaround—migrants were being arrested for violating state law, not for crossing the border between ports of entry. But in January, a judge in Travis County ruled that the arrest of an Ecuadorian migrant under the program was unconstitutional. The judge ruled that Operation Lone Star violates the Supremacy Clause of the Constitution, which states that federal law takes precedence over state law. Even though migrants arrested under Lone Star were being held on trespassing charges, the arrests were part of an effort to “enforce” federal immigration law—something Abbott had repeatedly said. 

“In addition, DA's office concluded that based on the evidence, there were multiple ways in which the [Operation Lone Star] program has failed to satisfy basic, fundamental, and procedural state and federal constitutional safeguards,” the Travis County District Attorney said in a statement to ABC News. A month later, an appeals court in Austin affirmed the judge’s ruling, but Operation Lone Star’s controversies didn’t end there.

In March, the Texas Tribune reported that some of the migrants arrested under Lone Star were imprisoned for months before being given an attorney or having charges filed against them. In Texas, criminal defendants must be assigned an attorney within three days of asking for one. People arrested on misdemeanor charges, such as trespassing, have to be released from jail pending trial if charges aren’t filed within 30 days of their arrest. Defense attorneys with Texas RioGrande Legal Aid said that both deadlines were regularly flouted under Lone Star. 

Texas RioGrande Legal Aid filed a suit in the Texas Court of Criminal Appeals on behalf of more than 400 men who had been arrested under Operation Lone Star and were hoping that the Travis County ruling from January could benefit their clients as well. But their clients are in Kinney County, and officials there are arguing that the Travis County ruling doesn’t have jurisdiction over cases in other counties. 

While some migrants have languished in Texas state prisons due to Operation Lone Star, others have inadvertently been able to use the policy to file asylum claims. Immigration officers at the border have been expelling migrants under Title 42 since March 2020—but those arrested under Lone Star aren’t expelled. They’re taken into criminal custody and eventually transferred to ICE detention. In December, BuzzFeed News reported that some migrants have been able to file asylum applications as a result of the Operation Lone Star arrests. Texas RioGrande Legal Aid told BuzzFeed News that 115 of the 120 asylum seekers the organization has information about have been able to pursue their asylum cases.

There have also been a string of suicides among the National Guard troops deployed to the border under Operation Lone Star. Last December, the Army Times reported on four suicides of soldiers at the border. After a group of Democratic lawmakers sent Abbott a letter urging him to end the policy, the governor claimed his critics were “just playing politics.”

Abbott is by no means the only politician to fan the flames of a “border crisis”—or to create a crisis where there isn’t necessarily one—to bolster his career. Last March, a group of Senate Republicans traveled to the border to observe the supposed crisis at the border. They sailed down the Rio Grande on gunboats with mounted machine guns and warned that Biden’s so-called open border policies were encouraging hordes of migrants to come to the U.S. In reality, the Biden administration has continued the policy expelling migrants en masse under Title 42, creating a very different kind of crisis—one in which migrants are entirely dependent on cartels and smugglers to get across the border, are often expelled into Mexico (or to other countries) after paying thousands of dollars to cross, and are then preyed upon by those very criminal networks while stranded in Mexico.

What’s next?

At this point, it’s fair to assume that Abbott is not going to let up. At this moment, the governor and his staff are probably plotting out how they can further use the resources at their disposal to stick it to the federal government and obstruct its functions. Now, it’s a question of how Biden wants to respond. It’s one thing to send the state police out to arrest migrants crossing the border into private property, but tanking all-important cross-border trade in a way that might have a measure impact on U.S. consumer costs and generate a diplomatic incident to boot is quite another. Appeasement clearly isn’t working here, and it’s likely that some in the administration are asking what can be done to send a more forceful message.

The most straightforward approach here is to undertake litigation asserting, for example, that the State of Texas is unlawfully attempting to regulate international trade or otherwise seizing a role designated for the federal government, an even clearer-cut argument here than it was with Lone Star. Another option is to attempt something like what the Trump administration tried to do to sanctuary cities, which is to say find a way to cut funding or some other cooperation from the federal government to the state, penalizing it for its transgressions. That’s a more legally fraught area.

As for the Title 42 lawsuit, it is going before Louisiana District Judge Robert R. Summerhays, who is a Trump appointee, though he doesn’t appear to have much of a record on immigration matters specifically. If past is prologue, Summerhays could easily find in favor of the plaintiffs, agreeing that the federal government failed to take into account the supposed harms that could accrue were it to terminate the Title 42 order. This effort is attempting to achieve an injunction before May 23, when the policy change goes into effect, but either way it’s certain that the losing side will appeal.

Under the Radar

Biden administration grants TPS to Cameroonians

Cameroonians living in the U.S. will soon be able to apply for Temporary Protected Status due to the ongoing civil war in that country. Those who meet the eligibility requirements will be granted work permits and protection from deportation for 18 months. 

"Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve," DHS Secretary Alejandro Mayorkas said in a statement to CBS News.

Only those who are in the U.S. as of April 14 will be eligible. TPS grants protection to people already in the country, not to anyone who migrates after the designation is announced. An estimated 10,000 Cameroonian immigrants will be eligible for TPS. 

Next Destination

Bipartisan group of senators to discuss immigration reform

Senators Thom Tillis and Dick Durbin are interested in convening a bipartisan group of lawmakers to reignite discussions over immigration reform, The Hill reports. Tillis, a Republican from North Carolina, and Durbin, an Illinois Democrat, have had preliminary conversations among themselves. 

Durbin told The Hill that rather than writing up a new bill from scratch, the idea is to look at legislation that has already been proposed. Tillis, meanwhile, said he’s interested in having a “four pillar discussion” about “immigration reform, DACA, border security,” and “asylum reform, particularly with that’s [sic] going on with Title 42.” 

Congress hasn’t passed a widespread immigration reform bill since the 1986 Immigration Reform and Control Act. Subsequent legislation, including the 1996 Illegal Immigration Reform and Immigration Responsibility Act, has only made the immigration system more restrictive.

It’s a common refrain that the two parties have both become more polarized on immigration over the past decade, but in actuality both Democrats and Republicans have moved to the right. While there are some Democrats who have called for the abolition of Immigration and Customs Enforcement, they are a minority within the party. Republicans have also moved further to the right on immigration, and some longtime members of Congress who initially supported immigration reform have since embraced the nativist wing of their own party.