Lawyers for the Biden administration and Texas faced off in a federal court in Austin on Thursday to argue whether a new state law that would allow police to arrest people suspected of crossing the Texas-Mexico border illegally should go into effect next month.
Senate Bill 4, which Gov. Greg Abbott signed in December, is Texas’ latest attempt to try to deter people from crossing the Rio Grande after several years of historic numbers of migrants arriving at the Texas-Mexico border.
The law makes illegally crossing the border a Class B misdemeanor carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison. The law also requires state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.
On Thursday, attorneys representing the U.S. Department of Justice and several nonprofit organizations that have sued the state argued that only the federal government can enforce immigration laws. They said that precedent set by federal courts makes clear that states are prohibited from enacting their own restrictions on entry to and removal from the U.S.
Brian Boynton, a deputy assistant attorney general arguing on behalf of the DOJ, rejected the notion that there is an “invasion” at the southern border, a refrain Gov. Greg Abbott has repeated to justify his border efforts.
Boynton also denied that the federal government has “abandoned” its duty to enforce immigration laws.
“There has been no abandonment,” Boynton said during a roughly hourlong argument in a packed courthouse. He added that the federal government has removed more than 400,000 migrants from the country since May, when the Biden Administration ended Title 42, the Trump-era policy that allowed officials to quickly expel migrants from the country.
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In December, the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of El Paso County and two immigrant rights organizations — El Paso-based Las Americas Immigrant Advocacy Center and Austin-based American Gateways — over the new state law.
The following month, the Justice Department filed its own lawsuit against Texas. The lawsuits have since been combined.
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A major point of contention between the opposing parties was whether SB 4 would allow migrants to access the asylum process, which they are entitled to under federal law. Boynton said that if a migrant were arrested under SB 4, they would not have a chance to claim asylum and could be sent back to Mexico, even if that country refused to accept them.
Lawyers for the state of Texas, however, said the law would not impede the asylum process. Ryan Walters, an attorney representing the state, suggested that migrants prosecuted for illegally crossing the border could apply for asylum from a Texas prison.
“There have been a lot of assumptions about the law,” Walters said. “Federal law enforcement can still come in and do credible fear interviews. There’s no difference from other cases where migrants are in Texas custody.”
But U.S. District Judge David Ezra said during the hearing that judges presiding over SB 4 cases will ultimately be forced to decide whether to abide by federal or state law. While SB 4 states that a court “may not abate the prosecution of an offense” on the basis that a federal determination of the immigrant’s status is pending, federal law asks that courts do take an immigrant’s asylum application into account.
Ezra also took issue with the fact that SB 4 would allow state judges to hear felony immigration claims. Typically, federal judges with lifetime tenure, known as Article III judges, have jurisdiction over cases where federal prosecutors seek criminal charges for immigration offenses, such as illegal entry.
“Someone who faces a possible 20-year sentence won’t have the benefit of an Article III judge,” Ezra said. “That is an issue of some concern.”
Ezra asked the state’s lawyers considerably more questions than he asked of the DOJ lawyers. He took jabs at state lawmakers, stating that “a little more care should have gone into drafting” SB 4, and at several points he joked that the state’s attorneys were in a difficult position.
Ezra rebuffed the state’s argument that there is an “invasion” at the border.
“I haven’t seen, and the state of Texas can’t point me to any type of military invasion in Texas,” Ezra said. Abbott has invoked the word “invasion” to describe the influx of migrants at the border because a clause in the U.S. Constitution prohibits states from engaging in war unless invaded.
“I don’t see evidence that Texas is at war,” Ezra said.
At the same time, Ezra said he sympathized with the state’s concerns about the border.
“This court is not unsympathetic to the concerns raised by Abbott,” said Ezra, noting that he has lived in immigration hot spots such as Phoenix and Tucson as well as on the border in Del Rio. “I’m very familiar with the concerns and to some substantial degree agree with those concerns.”
Ezra said at the end of the hearing that he would try to make a decision as soon as possible and well ahead of March 5, when SB 4 is scheduled to take effect. He predicted that his decision would be appealed and that the case would ultimately make its way to the U.S. Supreme Court.
See here and here for the background. My prediction, for those who don’t feel like clicking the links, is that the plaintiffs will get their restraining order, the Fifth Circuit will put the restraining order on hold, and nobody knows what SCOTUS will do. This shouldn’t be complicated or mysterious in any way since precedent is both clear and recent that states cannot do what Texas is trying to do, but we live in a world where too many courts don’t care about that. And so I don’t know how this will play out.
On the politics side of things, while Democrats are attacking Republicans in Congress and the Senate for scuttling the border bill they themselves had demanded as ransom for funding Ukraine, Israel, and Taiwan, maybe we could aim some of those attacks at Greg Abbott and his squadron of cosplaying Republican governors, too? I mean, I did not care for that deal that was struck in the Senate and I think it is unconscionable to offer up so much Republican red meat at all, let alone without getting a DREAM act and a path to citizenship, but the case one can make that they got everything they asked for and then threw it away on Donald Trump’s orders because he prefers to have the chaos as a campaign issue really is a salient one and will resonate with voters. It’s also not like we’ve got anything that has worked any better. Just, please, start mentioning Greg Abbott’s name when you talk about this, that’s all that I’m asking at this time.