Texas Attorney General Ken Paxton (R) told Texas legislators that they should position the state to “test” a 2012 Supreme Court decision affirming that only the federal government can conduct immigration enforcement.
The statement comes as Texas considers multiple pieces of legislation which would accomplish exactly that: creating a state immigration enforcement power.
One proposal that the Texas House speaker deemed a priority — HB 20 — would create a “Border Protection Unit,” empowered to “repel” undocumented migrants and “return” them to Mexico if they were seen crossing the border. The law touches on questions of state power raised by SB 1070, an Arizona law that the Obama administration challenged and that the Supreme Court struck down in 2012.
In a hearing before the Texas state Senate’s committee on border security this month, Paxton singled out the 2012 Arizona v. United States Supreme Court decision as “the one that we are most frustrated with.”
In its 5-3 decision, the Supreme Court found that the Arizona law, which made it a criminal offense for non-U.S. citizens to be in the state without documentation, violated the Constitution’s supremacy clause, which states that federal law overrides conflicting state statutes.
The Supreme Court held that the power to enforce immigration laws resides with the federal government, not the states.
Paxton cast that decision as something to be challenged, telling state lawmakers that “their decision didn’t make a lot of sense.”
“I’ve been saying for two years, we should test U.S. v. Arizona,” Paxton said.
“We’ve got a different court,” he said at another point in the hearing. “We’ve got the best chance we’ve ever had to overturn that and give the states the ability to protect their citizens, because if we can’t do it we leave our citizens unprotected in various ways.”
HB 20 would create criminal statutes at the state level for crossing the U.S.-Mexico border without documentation, while giving the newly created state Border Protection Unit criminal and civil immunity.
“I really struggle reading the Texas proposal,” Kit F. Johnson, a professor at the University of Oklahoma College of Law who focuses on immigration issues, told TPM of HB 20. “I cannot think of another instance in which we have had non-federal authorities claiming to protect the border.”
Scalia, Resurrected
HB 20 includes an unusual justification for its effort to annex power away from the federal government: that the state of Texas faces a foreign invasion. This, proponents argue, amounts to the U.S. government shirking a responsibility outlined in the Constitution: to “protect each of them” — the states — “against Invasion.”
In this case, it’s not the Russian army massing along Ukraine’s borders, but, rather, a right-wing media trope which casts undocumented immigrants as invaders, and conflates them with violent drug cartels trafficking fentanyl into the country.
At the hearing, Paxton accused the Biden administration of being in a “partnership” with cartels, saying that Biden “signaled to the cartels by saying we’re not gonna deport anyone, and hey, bring as many people here as you can, and we’ll let them in.”
Paxton added that his office had recently reviewed case law about how the invasion clause could be invoked, and suggested that cartel-inflicted fentanyl deaths could provide the basis to declare an invasion.
“There’s not a lot of information on it, but there’s clearly an invasion,” he said. “But is there an invasion that connects to the Constitution in a way that the states can do something about it? That’s a difficult question.”
The Federation for American Reform, an influential, anti-immigration group that the Southern Poverty Law Center describes as a “hate group” and which was founded by white nationalist John Tanton, has supported the Texas legislation enthusiastically. FAIR argued to TPM last week that HB 20 can take the Constitution’s invasion clause as a justification for state border enforcement.
“The invasion clause can be invoked by the states and is not subject to federal immigration law,” Shari Rendall, director of state and local engagement at FAIR, told TPM last week.
In the 1990s, several states invoked the invasion clause in lawsuits alleging that the federal government had failed to curtail immigration, but met with defeat at four separate circuit courts, with some holding that the question of whether a state had been “invaded” was political, and not up to the courts to decide.
Paxton conceded that because Texas regarded the invasion as one carried out by Mexican drug cartels, and not a foreign sovereign, the argument’s success was “far less certain.”
Texas Gov. Greg Abbott (R) has faced intense pressure from within his own party to formally declare an invasion in Texas, but has stopped just short of doing so.
Johnson pointed out that none other than Justice Antonin Scalia referenced the invasion point in his opinion in the Arizona case, concurring in part and dissenting in part.
Scalia wrote that the invasion clause “leaves intact [the states’] inherent power to protect their territory.”
But Scalia added at the end of his opinion that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”
“If securing its territory in this fashion is not within the power of Arizona,” he concluded, “we should cease referring to it as a sovereign State.”
Litigation Ahead
The authors of HB 20 and other legislation under consideration in Texas have said that they have future court fights on their minds.
Texas state Rep. Matt Schaefer (R), who introduced HB 20, told a local news reporter this month that lawmakers were factoring the cost of litigation into the proposal.
“That’s a cost that we’re willing to incur because we want to give Governor Abbot the maximum legal authority that we can to address a very serious problem,” he said, referring to the cost of defending the law in court.
Johnson pointed out that laws passed by GOP-dominated state governments attempting to criminalize transporting or harboring undocumented immigrants had recently lost in appellate courts dominated by Republican appointees.
But the parallel issue of creating a state crime for illegally crossing has yet to be tested.
David Leopold, an attorney at Ulmer law firm and a former president of the American Immigration Lawyers Association, told TPM that HB 20’s provision allowing Texas state law enforcement to immediately “return” undocumented migrants seen crossing the border was particularly likely to be challenged.
“They’re violating federal law, and opening themselves up to scrutiny under the federal civil rights statutes,” he said. “What if the person that Texas is turning around is a U.S. citizen? What if they’re eligible for or a T-visa or U-visa?” he said, referring to visas available to human trafficking victims and to victims of crimes who cooperate with law enforcement.
“What Paxton and Abbott are cynically banking on is the politicization of the judicial system, through the 5th Circuit and up to the Supreme Court,” he added.
