State leaders point to the recent influx of asylum-seekers at the Southwest border as the impetus for state-run enforcement. In the last fiscal year that ended in September, border officials encountered 2.4 million migrants – a record high – though thousands of them repeated crossers or asylum-seekers who were returned to Mexico under Title 42 and other initiatives and attempted to reenter the United States, according to federal statistics.
In 2021, Gov. Greg Abbott launched Operation Lone Star, which deployed state troopers and members of the National Guard to the border to repel and arrest migrants crossing into the U.S. without permission.
Abbott has touted the initiative as successful in stopping smugglers and drugs from slipping into the U.S., but it’s also been steeped in controversy. Immigrant attorneys have alleged racial profiling in border communities and due process violations.
HB 7 and HB 20 would codify Operation Lone Star into law, said Priscilla Olivarez, policy attorney and strategist with the Immigrant Legal Resource Center. The proposed laws’ shortcomings – alleged racial profiling and encroachment of due process rights – would expand to U.S. citizens and longtime undocumented border residents, she said.
“These groups would have the power to racially profile,” Olivarez said. “And they would have the power to do this in a way that would be unchecked.”
If passed, how would these bills spark a Constitutional battle?
Republican leaders in Texas have said they wish to contest a 2012 U.S. Supreme Court decision that struck down key provisions of an Arizona law that allowed local law enforcement to arrest undocumented immigrants and charge them with state crimes.
In a border security committee hearing last month, Texas Attorney General Ken Paxton said he would like to see cases that “test” the ruling in Arizona v. United States. Bills such as HB 7 and HB 20 would be seen as ideal test cases if they’re challenged in court, as expected.
“We have a different court,” Paxton told state lawmakers, referring to the Supreme Court’s 6-3 conservative majority solidified by three appointments under President Donald Trump. “We have the best chance we’ve ever had to overturn (Arizona v. United States) and give the state the ability to protect its citizens.”
But unlike the court’s decision last year to overturn Roe v. Wade, the landmark abortion protection decision, reversing the federal government’s purview over immigration enforcement could be a tougher sell for justices, said Denise Gilman, co-director of the Immigration Clinic at the University of Texas at Austin Law School.
“We don’t really want every single state having its own immigration policy,” Gilman said. “I’m not sure even this court will be willing to undo the longstanding understanding of immigration as a federal, not a state, function.”