AUSTIN (Nexstar) — The Texas Senate Committee on Border Security on Thursday heard a bill that would create a state crime for illegally crossing the federal border. It’s the latest legislative effort to consolidate border enforcement authority at a time when Texas officials accuse the Biden Administration of ignoring the strain on border communities.
SB 2424 by State Sen. Brian Birdwell (R-Granbury) would create a Class A misdemeanor for noncitizens who attempt to cross the Texas-Mexico border illegally. Additional offenses would be charged as felonies.
The power to patrol and prosecute border crimes is reserved to the federal government. But that’s not stopping top Texas Republicans from trying to push the limits of state power.
“As a result of the federal government’s unwillingness to enforce federal immigration laws and secure our southern border, the State of Texas has stepped up and devoted time and resources to combat the unprecedented border crisis that the state is facing,” the bill’s author analysis writes.
If the bill becomes law, the federal government is expected to take swift legal action to assert its jurisdiction over the border. Experts agree it would not pass a court challenge.
“It doesn’t make a lot of sense right now. I understand the intent and the aim, but when you look at practical matters, what will it change on the ground at this point? Nothing big,” said Dr. Victor Manjarrez, the director of the Center for Law and Human Behavior at UT El Paso. “They’re not bestowed immigration authority to actually determine alienation deportability.”
Muzaffar Chishti, Senior Fellow with the Migration Policy Institute at New York University, agrees the law is settled in the federal government’s favor. He points to the 2012 Supreme Court case Arizona v. United States, which affirmed that states cannot pass their own immigration laws.
“If it’s already a federal law, any other additional competing state laws will be considered preempted under the current Supreme Court doctrine,” Chishti said. “You cannot have fifty states have fifty foreign policies.”
It appears that some Texas Republicans hope to relitigate the issue, hoping to challenge that balance of power.
In a February interview, House Speaker Dade Phelan said he thinks the legislature “will have the opportunity to test those federal laws very soon.” His chamber’s HB 20 would create a Border Protection Unit under the Texas Department of Public Safety to enforce border security separate from federal Border Patrol agents.
“I expect there to be [legal challenges] full well. I expect it to be pretty immediate,” Executive Director of the Texas Sheriffs’ Regional Alliance AJ Louderback said. “The authority rests with the federal government and that’s what they’ll contend.”
Former Border Patrol officials say that, while the Biden administration may balk at these laws, the federal agents on the ground appreciate Texas’ efforts.
“We always need more manpower. And currently, what the state’s doing to support border security is tremendous,” Terrell County Sheriff and former Border Patrol agent Thaddeus Cleveland said. “There’s just not enough Border Patrol agents and a lot of them are tied up doing things, watching over aliens that have been arrested. We need more support along the border. And I support that.”
Dr. Manjarrez is a former sector chief with U.S. Border Patrol. He says Texas supports federal law enforcement on the border better than any other state, even if the pending legislation is unconstitutional.
“I think if you go along the southern border and you were to ask Border Patrol agents, ‘Which Governor or which state supports Border Patrol more than any other?,’ I think hands down it’s the state of Texas,” he said. “I think that bill goes to support Border Patrol agents… [but] it’s not going to have the desired impact at the end of the day.”
The Senate Committee on Border Security left SB 2424 pending on Thursday.
Mr. Chishti said while these bills may only advance anti-Biden talking points today, they could have long-term legal implications.
“These are not dumb people. They’re extremely smart people. Texas has become the ground zero of the polarization on immigration politics. They’re walking straight into that,” he said. “They may hope that they will get some judges which will be more sympathetic to Texas’ provision in this case, which would then create the possibility of overruling Arizona v. U.S.”