Texas is Going Rogue with Immigration Enforcement Policies

In a series of policies that appear to have no buy-in or support from the federal government, Texas is charting its own course when it comes to immigration enforcement programs. Regardless of how one views border enforcement generally, Governor Abbott may be doing more to sow confusion and chaos (not to mention a long list of lawsuits) than actually solve any real or perceived crisis along the border.

Governor Greg Abbott of Texas issued an executive order yesterday authorizing state authorities and National Guard units to apprehend migrants who enter the U.S. unlawfully or "commit other violations of federal law" and transport them to a port of entry along the border.

This is only the most recent action taken by Abbott to show that he’s tough on immigration. For the past several weeks, Abbott has also been bussing recently-arrived immigrants to Washington, D.C., at the cost of $1,795 per person and $5.3M to date.

Abbott also created Operation Lone Star in March 2021 following a declaration of the border region as a “disaster zone”, which then allowed him to deploy the National Guard to the border. The program used trespassing on private property as the basis for making large-scale arrests, although with little effect on the number of people crossing the border. The Department of Justice is currently investigating Operation Lone Star for discrimination.

Prior to Abbott’s executive order, several Texas counties and cities this week also declared that they are under an “invasion”. The counties of Kinney, Goliad, Terrell, Jeff Davis, Edwards, Presidio and the City of Uvalde have all declared invasions. The use of the term invasion has been criticized as being more performative than accurate. As Aaron Reichlin-Melnick put it:

“The "invasion" referred to in the US constitution is a military invasion; a foreign power invading the United States militarily. Families politely handing themselves in to the Border Patrol are not an invasion. Migrants evading arrest to go work construction are not an invasion.”

Aaron Reichlin-Melnick @ReichlinMelnick

The "invasion" referred to in the US constitution is a military invasion; a foreign power invading the United States militarily. Families politely handing themselves in to the Border Patrol are not an invasion. Migrants evading arrest to go work construction are not an invasion.

Bill Melugin @BillFOXLA

NEW: Several TX counties will hold a press conference in Brackettville, TX later today where they plan to declare an “invasion” at the border. I’m told they plan to reference Article IV Section 4 of the U.S. Constitution, which guarantees states federal protection from invasion.

It’s not just Texas. To a lesser but not insignificant extent, several other states are eager to get involved in new state-level immigration policy-making. The North Carolina legislature recently passed a bill (SB 101) that would require all sheriffs in the state to participate in immigration enforcement agreements with ICE, though the Democratic governor is expected to veto. Florida passed a similar law, SB 168, that was signed by Governor DeSantis in 2019.

Speaking of Florida, the Florida Supreme Court has agreed with DeSantis that he can, in fact, impanel a statewide grand jury to investigate immigration-related issues such as the smuggling of undocumented children into the state. The Supreme Court has said that the grand just could look into "parents, guardians or other family members of unaccompanied alien children who have conspired with transnational criminal organizations or other illicit actors to smuggle, and thus endanger, their children."

Taken together, all of these policies reflect how the current wave of politicization of immigration enforcement is being translated into very real policies in many states—though I believe Abbott is currently out in front of being by far the most aggressive and, shall we say, creative with how he uses his power as governor.

Image credit: NPR.

Further, whatever one thinks of these policies, this current wave of state-level immigration policy-making is likely to create even more confusion and inconsistency in the US immigration system, not to mention more legal challenges. Supporters of Abbott’s policies—and Abbott himself—allege that they are entitled to respond given that the Biden administration’s policies haven’t resolved issues at the border. Regardless, these policies do raise questions about the future of the states to get involved in immigration enforcement, particularly when it is not in partnership with the federal government.

Over the 19th and 20th centuries, immigration enforcement policies were centralized in the federal government through a series of immigration laws and reforms, and supported by Supreme Court cases that squashed states’ attempts to usurp the federal government’s sole authority in this area. These state-level policies run against this legal history, at least in principle, and signal a new period of intense battles over immigration federalism.

For context, I began my graduate school life studying the roll-out of 287(g) policy in the US South around 2009-2010, mainly in North Carolina and Georgia, where state legislatures and local law enforcement agencies were experimenting with various immigration enforcement arrangements. So I’m not suggesting that states’ involvement in immigration policy is new. It has been going on for some time now, at least since the late 2000s.

In fact, as some of my colleagues pointed out a decade ago, “immigration federalism, when viewed through the lens of local law enforcement, looks more like a patchwork of overlapping and potentially conflicting authority than a systematic approach to immigration enforcement.”¹ Indeed, a significant trend in immigration enforcement policy post 9/11 has been the localization of enforcement practices.

Nonetheless, for anyone arriving at this issue today, I think it’s reasonable to identify this current moment of rogue state-level policy-making as somewhat unique and start to examine the implications of these policies, particularly in light of the composition of the Supreme Court. I wonder, for instance, if states will be able to successfully claw back the kinds of immigration enforcement powers they had in the 1800s. This could heat up even more if Republicans take Congress this year and if the next president—Abbott or DeSantis, perhaps—ends up in the White House.

Support public scholarship.

Thank you for reading. If you would like to support public scholarship and receive this newsletter in your inbox, click below to subscribe for free. And if you find this information useful, consider sharing it online or with friends and colleagues.

1. Varsanyi, M., Lewis, P., Provine, D. M., & Decker, S. (2012). A Multilayered Jurisdictional Patchwork: Immigration Federalism in the United States. Law & Policy, 34(2), 138-158.