Texas Governor Abbott doubles down on illegal border stunts, daring a federal showdown—07-08-22
Immigration news, in context
This is the 128th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
If you find what we do useful, you can help us keep it going and keep improving by becoming a backer.
This week’s edition:
In The Big Picture, we look at Abbott’s latest attempt to conduct state-level border enforcement.
In Under the Radar, we discuss the Fifth Circuit’s decision to continue blocking the administration from prioritizing enforcement.
The Big Picture
The news: We’re about four months out from this year’s midterm elections, and you know what that means — time to crank up the big “immigration panic” knob that sits somewhere in the RNC headquarters. Texas Gov. Greg Abbott, who has already conducted several “border enforcement” stunts of dubious legality, is now massively escalating with a directive for state law enforcement and National Guard units to illegally detain suspected immigration violators and bring them to ports of entry, setting up a legal showdown with the federal government (which is, of course, the plan).
As we’ll get into in more detail below, the second-term Texas governor has made it something of a trademark to pantomime border enforcement and immigration control with the armed forces and resources at his disposal, starting with last year’s disastrous Operation Lone Star. Abbott has pulled other similar stunts, including a program of busing migrants to Washington, D.C. (many of whom thanked the governor for getting them closer to their ultimate destinations), and almost setting off an international trade incident by gumming up northbound supply chains with redundant state inspections of commercial trucks. Lone Star has remained the most durable and controversial of these initiatives. At least until now.
In an executive order issued yesterday, Abbot lays out all sorts of misleading information about a supposed border crisis. He then directs Texas National Guard and Department of Public Safety “to respond to this illegal immigration by apprehending immigrants who cross the border between ports of entry or commit other violations of federal law, and to return those illegal immigrants to the border at a port of entry.” There’s a lot to break down here, but let’s start with the very basics: Abbott is explicitly ordering state law enforcement to enforce federal immigration law (actually, literally any federal law that a migrant may have broken), which is, clearly and indisputably, illegal.
We don’t have to speculate about where the courts could come down under this set of circumstances because they already have. The courts weighed in on this issue in the decade-old case of Arizona’s infamous S.B. 1070, where the state tried to create state-level criminal prohibitions on being in the United States without status and working or seeking work without status; force local law enforcement to check the immigration status of people who were arrested or detained; and authorize them to warrantlessly arrest those suspected of being immigration violators. In its June 2012 decision in Arizona v. United States, the Supreme Court allowed the state to require officers to check immigration status but struck down the other provisions, including the one permitting state law enforcement to arrest for immigration violations.
Specifically, the 5-3 opinion (Elena Kagan, who had been involved in the case during her time as Solicitor General, recused herself) states that “[b]y authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, [the Arizona law] too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process.” This is pretty much a prohibition on the exact type of enforcement that Abbott is attempting to order here, putting him on a clear collision course with the administration and the federal courts.
This is probably what Abbott wants, both for the public spectacle and, potentially, to get this back before SCOTUS. The 2012 ruling featured dissents from Antonin Scalia, Clarence Thomas, and Samuel Alito, the latter two of which remain on the court, now joined by three other right-wing justices to form a majority. As the events of the last month have demonstrated, this court isn’t quite that keen, shall we say, on stare decisis, or the principle that courts should observe precedent. Unluckily for the restrictionists, the person who wrote the opinion then was Chief Justice John Roberts, who also authored the recent opinion allowing the federal government to unwind the Remain in Mexico program against the arguments of plaintiff… Texas. Filing a concurrence was none other than one of the new conservatives, Brett Kavanaugh; though he was ultimately chastising the federal government for not detaining more immigrants, he did fall on the side of acknowledging the federal administration’s clear discretion and exclusive authority to regulate immigration policy.
Abbott doesn’t totally ignore this precedent, and in fact he specifically references Arizona v. United States in the order, writing that the decision “specifically does not ‘address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.’” This is, to put it plainly, an absurd argument that would get someone laughed out of a first-year law class. While some lower federal courts have ruled that this type of prolonged detention, in the form of executing ICE detainer requests, is unlawful, that’s beyond the point here. This is clearly not prolonging a detention, it is effecting an initial detention based on suspicion of immigration violation, an action SCOTUS has clearly prohibited.
That’s not the end of Abbott’s legal acrobatics. The governor claims that Biden has violated Article IV § 4 of the U.S. Constitution, which compels the federal government to “protect each [state] against invasion,” putting into a formal executive order the dangerous concept that the arrival of migrants is an invasion akin to an actual military invasion of U.S. territory by a foreign power. That bit of hysterics has become popular among right-wing circles in the last several years, but it is rarely seen put to an official document that directs actual executive action based on that premise.
How we got here
Abbott has a penchant for stoking controversy at the border, and this latest move is no exception. Last year, the Texas governor launched Operation Lone Star, through which the state—as well as Arizona, South Dakota, Iowa, and Arkansas—deployed its National Guard troops to the Texas-Mexico border. (Florida, Ohio, and Nebraska also sent some of their state highway patrol troopers). Since state forces don’t have the power to enforce federal immigration law, the National Guard officers stationed at the border were instead told to arrest migrants they encountered for trespassing. This was possible because most of the borderlands in Texas are privately held land; it would have been impossible in a state like, say, Arizona, where the majority of the land bordering Mexico is federally owned.
Lone Star was a failure on virtually every level. Abbott framed it as his way of stepping in after the Biden administration supposedly “opened” the southern border, even though Title 42 was—and remains—in place, meaning most migrants apprehended between ports of entry (as well as those who asked for asylum at ports of entry) were rapidly expelled to Mexico or their country of origin. Lone Star was entirely about optics; it was a way for Abbott to look “tough” on immigration, though in practice, it actually let migrants who would have otherwise been expelled stay in the country.
Instead of being rapidly expelled under Title 42, migrants arrested under Operation Lone Star were sent to local criminal detention facilities—some of which Abbott had emptied for the express purpose of detaining migrants—where, in some cases, they were able to apply for asylum. As of December, 38 migrants had been able to apply for asylum through the help of Texas RioGrande Legal Aid, BuzzFeed News’s Adolfo Flores reported last year. Despite this unintended consequence, Lone Star contributed to clear civil rights violations: in March, the Texas Tribune reported that some migrants arrested as part of the program were detained for months without access to an attorney or charges filed against them.
Although migrants apprehended under Lone Star were supposed to be arrested on trespassing charges, the program’s goal was always immigration enforcement, and Abbott said so himself. In January, a Travis County judge ruled that Lone Star violated the supremacy clause of the Constitution, though this ruling only applied to a specific migrant, not to the program overall. Texas appealed the decision, but a state appellate judge ruled against the state. Despite these rulings, as well as the fact that the operation seems to have led to the suicide deaths of several Guard troops who were left despondent by the pointless, open-ended deployment, the program continues. The Justice Department is now probing the mission for civil rights violations.
In April, Abbott unveiled yet another useless “border security” measure: inspecting northbound commercial vehicles that passed through Texas, ostensibly in an effort to find smuggled migrants and drugs, even though said vehicles had already been inspected at ports of entry. Just like Lone Star, these interdictions were a blatant violation of the supremacy clause. As an added bonus, the redundant inspections led to traffic jams, delivery delays, and canceled orders. Mexican truckers staged a protest over the measure, and Abbott ultimately suspended some of the inspections in April, though he ordered state police to resume them in June after at least 53 migrants were found dead in a northbound truck in Texas.
Abbott also started busing migrants to Washington, DC in April, which cost the state more than $1.6 million over just two months—or $1,400 per person—according to NBC 5 Investigates. Abbott solicited donations for the program but raised just $112,000 in private funds, the report found. Immigrant advocates and the migrants themselves rightly saw the busing program as a boon, since it got many closer to their intended destination than they had been before. The busing debacle is a perfect encapsulation of Abbott’s immigration policies: all show and little substance, to the point that he often ends up unintentionally contributing to the supposedly “open border” conditions he claims to oppose. To be clear, we aren’t saying Abbott is pro-immigration; his rhetoric and actions prove otherwise, even if he occasionally ends up hurting his own cause. Rather, he’s the perfect example of a nativist who either doesn’t understand how immigration policy works or pretends not to for the sake of political expediency.
One of the remaining questions is what exactly Texas National Guard and law enforcement units will do if and when they unlawfully take migrants into custody. The order simply states that they will “return those illegal immigrants to the border at a port of entry,” which is quite vague. What port of entry? How long will people be held (illegally) in custody? What is the plan when they arrive at the border? Will state law enforcement simply turn them over to Customs and Border Protection? Will Texas state personnel attempt to actually effect deportations themselves?
In public statements, National Border Patrol Council President Brandon Judd has made it sound like the union expects Texas state law enforcement to bring migrants to the ports of entry and hand them over, but that’s not really in the order itself. It is, as we’ve established, illegal for state personnel to conduct these arrests in the first place, but it would be incredibly illegal for them to actually deport someone, a function delegated exclusively and specifically to federal authorities and even then only after certain processes have been completed. If they were to deport someone who made a humanitarian claim that would be staggeringly illegal, not only under a great many domestic laws but international laws and compacts as well.
Abbott’s prior shenanigans were at least conducted under some color of state law, but this is as clear-cut as it gets. It’s not clear if anyone has tried to file suit yet, but someone undoubtedly will, and soon. Even a hack right-wing judge will take five minutes to enjoin the order and Texas Solicitor General Judd Stone II (a former chief counsel for Sen. Ted Cruz) will kick it up the circuit level. The strategy here seems quite obviously to get it before the Supreme Court as quickly as possible, at which point they will either prevail before a friendlier court than the one that heard Arizona v. United States a decade ago or they lose again.
Either way, Abbott wins; he gets to claim victory for securing a state ability to conduct immigration enforcement, or he gets to say he stared down “open borders” Biden and was foiled in his heroic efforts by legal technicalities. All will work just as well on a campaign mailer. More broadly, this is yet another escalation in the immigration enforcement face-off. Abbott is leading the charge in pushing the envelope on what states can attempt in the name of enforcement. The usage of “invasion” as a formal term in the order is another step, and one that isn’t occurring in a vacuum.
This week, several Texas counties tried to formally declare that they were under invasion, apparently spurred on by noted not-actually-legally-appointed former Trump Homeland Security “official” Ken Cuccinelli. The counties are attempting to essentially pressure Abbott into making a similar declaration at the state level; while this executive order isn’t exactly that, it’s not not that, invoking the constitutional language of invasion to justify state officials’ illegal actions. This is probably not the last we’ll see of this invasion language, especially as officials in other states see it as a model.
Under the Radar
Fifth Circuit refuses to stay prioritization order
In yet another lawsuit brought by the state of Texas against Biden administration immigration policies, the state is seeking to have the prioritization scheme enacted by Homeland Security Secretary Alejandro Mayorkas, which generally laid out who enforcement should and should not be directed towards. At the top of the list were the usual suspects: people for whom there was some suspected national security risk, those convicted of certain crimes, and recent entrants, while others were deprioritized.
Texas claimed that the prioritization itself was unlawful and that the memo failed to take into account the supposed harms that would befall it if not every single person without status wasn’t an immediate priority for removal; bear in mind that the federal government cannot enforce immigration laws against everyone, so some prioritization de facto occurs anyway, but Texas’ contention is there can be no formal prioritization of resources.
Trump-appointed District Judge Drew Tipton had sided with the plaintiffs and vacated the memo. Despite the fact that the Supreme Court recently reaffirmed that lower courts do not have the authority to issue injunctive relief when it comes to certain immigration and border enforcement schemes, the Fifth Circuit judges handling the appeal hold that this does not actually count as injunctive relief, and that the administration did not establish this was likely to win on appeal, keeping the vacatur in place. For now, that means there’s no controlling internal enforcement priority structure.