Nov 28, 2023 - World

Critics say Texas immigration bill will lead to racial profiling

A woman and three children wrapped in mylar blankets walk past a dog and a border patrol truck at the Mexico-Texas border.

Migrants surrender to U.S. Border Patrol agents after crossing the Rio Grande in Eagle Pass, Texas, on Oct. 11, 2023. Photo: Jordan Vonderhaar/Bloomberg via Getty Images

Texas Republicans have upped the ante in their effort to control the southern border, sending Gov. Greg Abbott a bill that gives local police authority over immigration enforcement.

Why it matters: Critics of the legislation say it is unconstitutional and will lead to racial profiling.

  • Legal experts argue it violates long-standing Supreme Court precedent and goes far beyond Arizona's divisive Senate Bill 1070, partially struck down by the high court.

Driving the news: Abbott made the issue a priority, calling lawmakers back for a fourth special session to send a bill to his desk.

  • He's expected to sign Senate Bill 4 into law soon, although a spokesperson for the governor on Monday declined to comment on when he will do so.

Background: SB 4 would make it a state misdemeanor to illegally cross the Texas-Mexico border and permits a judge to order an undocumented person to return to Mexico.

  • The bill, which easily passed the Republican-led Senate and House over Democratic opposition, also requires law enforcement to collect "all available identifying information of the person," including fingerprints and photographs.

What they're saying: César Cuauhtémoc García Hernández, an immigration law expert and professor at the Ohio State University College of Law, says Texas lawmakers are attempting to create two new state immigration laws — illegal entry and illegal re-entry — that already exist and are consistently enforced at the federal level.

  • "The federal constitution is really clear that when a state law conflicts with federal law, the federal government wins," García Hernández tells Axios.
  • "This is the most obviously unconstitutional state law in the area of immigration I have ever seen," civil rights legal scholar Thomas A. Saenz, president of the Mexican American Legal and Educational Fund (MALDEF), tells Axios.
  • Whereas the Arizona law required local police to turn over people they suspected of being in the country without authorization to federal authorities, the Texas law "attempts to set up its own system of deportation … its own system of judges determining who's allowed to stay and who has to go," Saenz says.
  • That violates the core tenant of why immigration enforcement is up to feds — if each state had its own immigration policy, there would be no United States, Saenz adds.

The other side: Proponents of the bill say it will empower law enforcement and target those who have recently crossed the border illegally, rather than people who have been in the state legally for years.

  • "SB 4 is the strongest border security bill Texas has ever passed," Lt. Gov. Dan Patrick, a Republican, said in a statement.
  • "The illegal crosser can be jailed or ordered by a magistrate to be returned to the border. If they violate the order and return to Texas, they will face even harsher penalties."

The big picture: U.S. Customs and Border Protection counted almost 270,000 migrant encounters near the southern border in September, the most recent month for which data is available, a multiyear high. More than 160,000 of those encounters occurred in Texas.

Context: The Supreme Court in 2012 dismantled most of SB 1070, known as the "show me your papers" law, but left intact a provision that allows police to investigate the immigration status of someone they suspect of being in the country illegally. Arizona does not enforce the law per an agreement with civil rights groups.

Threat level: Domingo Garcia, national president for the League of United Latin American Citizens (LULAC), tells Axios the Texas bill would lead to "rampant racial profiling."

  • Garcia says police asking people to prove their immigration status​​ "can lead to widespread discrimination and repression."

The intrigue: It's unclear how small municipalities will manage the cost.

Between the lines: Abbott is seen as a potential vice presidential candidate, politics experts told Axios.

  • "We need a president who's going to secure the border," Abbott said during his recent endorsement of former President Donald Trump. "We need a president who's going to restore law and order."
  • Abbott is also expected to sign SB 3, which appropriates more than $1.5 billion for the construction of border barriers.

What we're watching: Experts think the U.S. government will sue to stop the measure from taking effect. Garcia says LULAC will also file a lawsuit as soon as Abbott signs the bill.

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