Texas is looking to take immigration enforcement into its own hands by passing Senate Bill 4 (“SB 4”), a new criminal law that would allow state police to arrest migrants and, subsequently, state judges to deport them. The Department of Justice (“DOJ”) has sued Texas over this new law, arguing it unconstitutionally encroaches on the federal government’s exclusive authority over immigration. SB 4, signed into law by Texas Governor Greg Abbott in December, makes it a state crime to illegally enter the country at any location other than a port of entry. On its face, the bill looks akin to statutes that Congress has on the books regarding illegal entry. However, the DOJ argues the bill’s enforcement at the state level frustrates the federal immigration system in a multitude of ways. For example, SB 4 would impede a noncitizen’s access to the asylum process. In addition, the Texas statute may circumvent other federal protections that migrants have access to, such as protection for unaccompanied children. The DOJ maintains that the U.S. Constitution entrusts the federal government with the authority to preside over the regulation of immigration and the international borders, and SB 4 comes into conflict with that power. Therefore, according to Associate Attorney General Vanita Gupta, SB 4 is in clear violation of the Supremacy Clause. Conversely, Texas contends that SB 4 complements, rather than conflicts, with federal law. This argument is premised on the notion that SB 4 does not impose more severe penalties than its federal counterpart. Texas has taken issue with the current administration’s enforcement practices, arguing that it cannot claim preemption while simultaneously refusing to effectuate its duties under the Immigration and Nationality Act (“INA”). Texas accuses the federal government of “abandoning the very field it now purports to occupy.” Governor Abbott has repeatedly expressed his concerns that there is an “invasion” at Texas’s southern border. He claims SB 4 is needed as a means to enforce the immigration system that the federal government has abandoned. A federal district court in Austin held a hearing on the DOJ’s motion for a preliminary injunction on February 15, 2024. Based on U.S. District Judge David A. Ezra’s comments during the hearing, it seemed likely that the motion would be granted. He expressed particular concern for the sort of patchwork system that Texas’s new law could create, stating it was “the kind of thing the Civil War said you can’t do.” Judge Ezra further noted the significance of SB 4 in that it would give local law enforcement the right to place noncitizens before state judges, rather than Article Ill judges within the federal court’s jurisdiction. Additionally, state judges in those situations would be forced to choose between enforcing either state law or federal law. Under SB 4, a court is precluded from abating the prosecution of an offense on the basis that a federal determination of an immigration application is pending, whereas federal law urges courts to take a noncitizen’s asylum application into account. Judge Ezra returned a decision on February 29, granting the injunction. He indicated that the enactment of SB 4 would effectuate a “nullification of federal law and authority-a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.” The decision will likely be appealed and ultimately find its way to the U.S. Supreme Court. In any event, any future decisions will be pivotal in deciding the future of the federal immigration system. Similar bills are currently pending in state legislatures such as Florida, Louisiana, and North Carolina.

CITATIONS

• “Arrington Leads Amicus Brief in Support of S.B. 4 in United States v. Texas.” U.S Representative Jodey Arrington, 13 Feb. 2024.

• Atkins, Dorothy. Texas Says New Migrant Arrest Law Mirrors Federal Law, Law360, 8 Feb. 2024. • Bova, Gus. Federal Judge Halts Texas Deportation Law, The Texas Observer, 1 Mar. 2024.

• Eakin, Britain. Texas Judge Bars State’s Migrant Arrest Law During Litigation, Law360, 29 Feb. 2024. • Five Things to Know about Texas SB 4 Bill, National Immigration Forum.

• García, Uriel J., and Pooja Salhotra. Texas and Biden Administration Lawyers Face off in Court over New Law Making Illegal Border Crossing a State Crime, The Texas Tribune, 15 Feb. 2024.

• “Justice Department Files Lawsuit against the State of Texas Regarding Unconstitutional SB 4 Immigration Law.” Office of Public Affairs / United States Department of Justice, 3 Jan. 2024.

• Marfin, Catherine. Texas Migrant Arrest Law Needs “A Lot More Care,” Judge Says, Law360, 15 Feb. 2024. • Sims, Vince, and Acacia Coronado. DOJ Sues Texas over Law That Would Let Police Arrest Migrants Who Enter US Illegally, NBC 5 Dallas-Fort Worth, 3 Jan. 2024.