[Update: As threatened, the Department of Justice has filed suit against Texas over SB4.]
I recently reported that the state of Texas is criminalizing illegal entries into the state from Mexico under its recently enacted Senate Bill 4 (SB 4), which was signed by Gov. Greg Abbott (R) on December 18. Last week, Brian M. Boynton, the principal assistant deputy attorney general (PADAG) at the U.S. Department of Justice, sent Abbott a letter threatening to sue the state by today unless the state “agrees to refrain from enforcing the law”. Abbott likely relishes the inevitable fight, as it will give Texas an opportunity to air its grievances against the president’s border release policies.
SB 4. SB 4 makes it a state crime for an alien to illegally enter the state “directly from a foreign nation at any location other than a lawful port of entry”. Given there’s only one “foreign nation” an illegal entrant could cross into Texas from without going through a port of entry, the focus of that provision is on migrants crossing the Rio Grande illegally from Mexico into the Lone Star State.
That crime is a class B misdemeanor under Texas law — carrying a penalty of up to 180 days in jail and a $2,000 fine — for a first offense, and a felony with a penalty of two years or more and a fine up to $10,000 for aliens who illegally reenter after a prior conviction.
The real meat of that bill, however, is a provision that enables state magistrates to dismiss first-offense charges if the alien agrees to return voluntarily back across the border. Texas lacks the authority to deport aliens itself (that would require CBP’s assistance, which the White House would never allow), but if aliens agree to go back, there’s little logically or practically the administration could do to stop them from going.
That said, if and when those aliens reenter, they are likely going to beeline to the first Border Patrol agent they see, and to avoid state troopers and anyone wearing camouflage like the plague.
The PADAG’s Letter. SB 4 isn’t set to take effect until early March, but the Biden administration is attempting to head off any enforcement by issuing its litigation threat.
In my earlier piece on this bill, I compared and contrasted its provisions with those included in SB 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act”, a 2010 Arizona law that — among other things — criminalized aliens’ illegal presence in that state.
President Obama’s DOJ challenged that law on federal preemption grounds, and in its 2012 opinion in Arizona v. U.S., the Supreme Court struck down three provisions in SB 1070 that it found to be preempted by Congress in the Immigration and Nationality Act (INA):
Section 3: Which made "willful failure to complete or carry an alien registration document" a state crime.
Section 5(C): Which made it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in [Arizona]."
Section 6: Which authorized state and local officers to make arrests without warrant where there is probable cause to believe "the person to be arrested has committed any public offense that makes the person removable from the United States."
The PADAG’s Letter. The PADAG relies heavily on Arizona in his letter threatening Texas with litigation, noting that the Court therein explained that “’the Government of the United States has broad, undoubted power over the subject of immigration and the status of’ noncitizens”.
After laying out the authorities Congress has given the executive branch “over the subject of” aliens at the border, the PADAG returns to Arizona, asserting:
SB 4 therefore intrudes into a field that is occupied by the federal government and is preempted. Indeed, the Supreme Court has confirmed that “the removal process” must be “entrusted to the discretion of the Federal Government” because a “decision on removability” touches “on foreign relations and must be made with one voice.”
Curiously, however, the PADAG never mentions who, exactly, has “entrusted” the administration with the discretion it has over “the removal process”. And for that, I turn back to the Supreme Court itself, in its 1954 opinion in Galvan v. Press, where the justices explained:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. ... But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Citations omitted; emphasis added.]
I don’t speak for Texas’ attorney general and have had no discussions with anyone in that office about SB 4, but you can be sure the state will cite to that nearly 70-year-old case in arguing that Texas has had to resort to actions like SB 4 only because the Biden administration is ignoring the policies — enshrined in the INA — that Congress has implemented to control the border.
Of course, there’s also the fact that SB 4 has nothing at all to do with “the removal process”. Texas’ AG may likely concede PADAG Boynton’s point about removal being “entrusted to the discretion of the Federal government”, but respectfully, Texas isn’t trying to “remove” anybody. All it is attempting to do is to use the threat of state prosecution for illegal entry as a deterrent to would-be illegal migrants.
The PADAG continues:
SB 4 also conflicts with various provisions of the INA. For example, it interferes with the federal government’s ability to enforce the entry and removal provisions of federal law, and it conflicts with various provisions of federal law permitting noncitizens to seek protection from removal to avoid persecution or torture.
With respect to the first point, again, Texas will almost definitely argue that SB 4 doesn’t “interfere with the federal government’s ability to enforce the entry and removal provisions” in the INA because DHS under the Biden administration isn’t actually trying “to enforce” those provisions. If it were, Texas wouldn’t need to incur the expense of passing — let alone enforcing — the law to begin with.
As for “various provisions of federal law” allowing aliens to seek humanitarian protection, SB 4 explicitly provides that a grant of asylum or other lawful presence in the United States is an affirmative defense to prosecution thereunder. That, of course, raises the question of how aliens in state custody would be able to seek asylum, which would likely be DOJ’s strongest argument in preempting SB 4.
Keep in mind, however, that the administration is doing something similar with its May “Circumvention of Lawful Pathways” (CLAP) rule, that is driving migrants to the border ports of entry by threating to deny them asylum if they evade those ports and enter illegally. Texas could claim that it’s just following the White House’s lead.
The Political Element. Which brings me to the political element in all of this. Gov. Abbott knew he was going to get a letter like this from DOJ, but he probably expected it to be signed by the department’s top dog, Attorney General Merrick Garland, not the number-two man in the deputy attorney general’s office.
Abbott and the state of Texas almost definitely relish this fight. True, the legality of SB 4 will be at issue as this case wends its way through the courts, but Texas will be putting the White House and its disastrous border policies on trial at each of those hearings, in much the same way Abbott has brought the border to northern cities by busing migrants released by DHS in Texas to them.
Biden knows the border is a political liability for him and his party, and if you want proof, consider two facts: (1) the president is now willing to negotiate with Senate Republicans over immigration and asylum reforms; and (2) he sent two top cabinet officials, Secretary of State Tony Blinken and DHS Secretary Alejandro Mayorkas, to Mexico City two days after Christmas to beg President Andrés Manuel López Obrador for help slowing the migrant flow. (They got rolled.)
If the White House thought it had the winning hand at the border, none of that would have happened.
It’s doubtful Texas will back down on implementing the state criminal penalties for illegal entry in SB 4 in the face of bullying by Biden’s DOJ. In fact, the threat of litigation will likely just rev up border hawks, who will be able to assert — correctly — that the administration is more interested in keeping Texas from securing the border than the White House is in doing the job itself.