September 28, 2022

Texas Republican Gov. Greg Abbott on Thursday authorized state officials and National Guardsmen to arrest migrants who enter the U.S. unlawfully and transport them to federal ports of entry along the border with Mexico, the latest escalation in his feud with the Biden administration over immigration policy.

Abbott signed a directive purporting to give the Texas National Guard and Department of Public Safety the authority to apprehend migrants who enter the U.S. in between ports of entry or “commit other violations of federal law.” The order also empowered state officials to “return” these migrants to ports of entry, which are administered by U.S. Customs and Border Protection (CBP), a federal agency.

While Abbott has signed other directives targeting Biden administration border policies, his order on Thursday is arguably the most escalatory move yet, signaling a clear defiance of long-standing legal precedent dictating that the power to enforce immigration laws rests solely with the federal government.

The implementation timeframe and scope of Abbott’s order remained unclear on Thursday, but it could be blocked by legal challenges, which doomed another directive from the governor last year that instructed state officials to stop vehicles suspected of transporting migrants released from federal custody.

A spokeswoman for the Justice Department, which represents the federal government in litigation, declined to comment on Abbott’s proclamation. Representatives for the Department of Homeland Security (DHS), which oversees three federal immigration agencies, also did not respond to requests for comment.

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Migrants are apprehended by US Border Patrol and National Guard troops in Eagle Pass, Texas, near the border with Mexico on June 30, 2022. 

CHANDAN KHANNA/AFP via Getty Images


U.S. immigration law gives the federal government — not states — the power to arrest, detain, interview, deport, penalize, grant relief to and otherwise process migrants who are in the country illegally or who become deportable because of certain criminal convictions.

In a 2012 ruling that partially struck down an Arizona law that expanded the state’s ability to arrest and penalize unauthorized immigrants, the Supreme Court held that the federal government has “broad, undoubted power” over immigration policy.

Representatives for Abbott, the Texas National Guard and the Department of Public Safety did not respond to questions about the legal authority under which state officials would arrest, detain and transport migrants under Thursday’s order. 

In his proclamation, Abbott listed several concerns about the Biden administration’s handling of the record levels of migrant arrivals along the southern border over the past year and argued the federal government has “abandoned” a provision in the U.S. Constitution tasking it with protecting states from an “invasion.”

Abbott cited Texas laws related to disaster responses and the power to task the military with law enforcement. He also argued the 2012 Supreme Court ruling on the Arizona immigration law left the door open to state arrests of immigrants when there’s “reasonable suspicion of illegal entry or another immigration crime.”

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Migrants are apprehended by US Border Patrol and National Guard troops in Eagle Pass, Texas, near the border with Mexico on June 30, 2022. 

CHANDAN KHANNA/AFP via Getty Images


Theresa Cardinal Brown, a former senior DHS immigration official under Presidents George W. Bush and Barack Obama, said she expects Abbott’s edict to be challenged in federal court, saying it rests on an “untested legal theory.”

“Invasion is a very particular term. In general parlance, it would be an organized group invading from another country,” Cardinal Brown said.

Beyond questions about its legality, Abbott’s order did not include details on when and how state officials will implement their new authority to arrest immigrants suspected of violating federal immigration or criminal laws.

Representatives for the Texas National Guard and the Department of Public Safety did not answer a series of questions, including whether state officials planned to use the authority Abbott purported to grant them, which groups of migrants they would apprehend and when they would start the arrests.

The representatives also did not say whether state officials coordinated or planned to coordinate with federal immigration officials to implement the directive. DHS did not say whether federal border authorities planned to accept migrants returned to a port of entry by Texas officials.

Renae Eze, a spokesperson for Abbott, referred operational questions to the Texas National Guard and Department of Public Safety. But Eze confirmed that migrants will “be returned” to ports of entry “on the U.S. side of the border.”

Ericka Miller, press secretary for the Texas Department of Public Safety, said the agency was “acting under the direction” of Abbott’s order, but that she could not “discuss operational specifics.”

Abbott, who is running for reelection this year, has positioned himself as a leading opponent of President Biden’s immigration and border policies.

Over the past year, Abbott has authorized the arrest of migrants on state trespassing charges, deployed Texas National Guard units to the U.S.-Mexico border, stopped licensing shelters for migrant children in federal care and ordered the transportation of asylum-seekers to Washington, D.C.

This spring, Abbott ordered state inspections of commercial trucks entering the U.S. before suspending them after business leaders, the Biden administration and some Republicans highlighted the negative economic impact of the screenings, which slowed down cross-border traffic.

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Migrants are apprehended by US Border Patrol and National Guard troops in Eagle Pass, Texas, near the border with Mexico on June 30, 2022.

CHANDAN KHANNA/AFP via Getty Images


Texas has also filed numerous lawsuits against Mr. Biden’s immigration agenda, convincing conservative federal judges to revive Trump-era policies or stop several programs, including the Obama-era Deferred Action for Childhood Arrivals (DACA) initiative, which was closed to new applications last year.

Like Republicans in other states and in Congress, Abbott has faulted the Biden administration for the unprecedented levels of migrant apprehensions recorded over the past year, accusing it of lax border enforcement.

The Biden administration, however, has argued the historic migration episode has been fueled by economic instability, hunger, violence, political repression and corruption in some countries in the Western Hemisphere that have seen record numbers of their citizens journey north. 

U.S. officials along the southern border have processed migrants over 1.5 million times so far in fiscal year 2022, which ends at the end of September, a tally that is on track to surpass the record 1.7 million migrant encounters reported in fiscal year 2021, DHS data show.

Approximately 750,000 of the migrants processed this fiscal year have been expelled to Mexico or their home country under Title 42, a public health law first invoked under former President Donald Trump that the Biden administration has been required to continue indefinitely by a court order, according to the data.

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