On Tuesday night, the Texas House of Representatives voted in favour of one of the most controversial and harshest immigration laws in the country. It will have a major impact on migrants across the state and could also trigger lawsuits and an international dispute with Mexico.
The bill now heads to the desk of Texas Governor Greg Abbott for his signature.
Before Tuesday’s vote, State Representative Jolanda Jones, a Democrat, delivered a scathing rebuke of the bill, calling SB 4 and its supporters “racist”.
“It’s not okay to be racist. I will stop pulling the race card when you stop being racist,” she said.
SB 4 was considered as part of the fourth round of a special legislative session called by Texas Governor Greg Abbott to consider several immigration-related bills.
It creates two new state crimes for migrants who illegally enter or re-enter the state from another country, punishable by up to two years in prison.
One of the most controversial aspects of the bill would authorise local and state law enforcement officials to arrest migrants they suspect have entered Texas illegally. It also allows judges to order some migrants to return to the country from which they crossed illegally, rather than prosecuting them.
Officers and state agencies would be allowed to transport them to ports of entry to ensure they comply. If migrants refuse an order to return, they could be charged with a second-degree felony and face up to 20 years in prison.
SB 4 has sparked fears among immigrant rights advocates that the bill would lead to widespread racial profiling and circumvent protections that asylum seekers have under constitutional law and international obligations. The bill contains no funding or requirement to train officers in immigration law, although it would authorise them to make quick decisions about a person’s immigration status.
“There is no US federal analogue to a lone officer using their own discretion to escort someone to the border and say get out. That is a very frightening prospect that is categorically different from what the federal government does. Moreover, in the federal system, people would be able to present their claims to an immigration officer and an immigration judge,” said David Donatti, a senior staff attorney with the ACLU of Texas.
There’s also growing concern that parents could be separated from their children if they are arrested under these new state crimes.
Aron Thorn, a senior staff attorney with the Texas Civil Rights Project, says the law could trigger lawsuits and an international dispute with Mexico because it would lead to migrants being sent across the southern border regardless of their legal status there.
Some opponents of the bill have also suggested that it is being introduced to trigger a challenge to the 2012 Supreme Court decision in Arizona v. United States, which upheld the federal government’s authority over immigration enforcement. That case involved a law similar to SB 4 that authorised police officers to question and arrest migrants about their immigration status.
Thorn says that because the new crimes created by SB 4 only apply to undocumented immigrants, it will lead law enforcement officials to use race as probable cause to arrest people.
“We know that our history is full of examples of race being used as a proxy for immigration status. We live in Texas, our history books are full of it, and I think people are right to be concerned, especially because there is no way to violate this without being an alien, which means they have to have some sort of idea that you are a non-citizen and race is being used as a proxy for that,” Thorn said.
A spokesman for the Department of Homeland Security declined to comment on the specific legislation proposed in Texas, but said the removal of non-citizens is the responsibility of the federal government.
“In general, the federal government – not individual states – is charged with determining how and when to remove noncitizens for violating immigration laws. State actions that conflict with federal law are invalid under the Supremacy Clause of the Constitution,” the spokesman said.
Lawmakers have considered several versions of SB 4 and other similar proposals throughout the year, but failed to send them to the governor’s desk in previous sessions. Hearings have been marked by strong opposition from Democrats and Republicans.
During a Senate vote on the bill last week, Republican Senator Brian Birdwell, who authored an earlier version of the bill last session, said this version undermines the constitution by challenging the federal government’s jurisdiction over the removal of migrants.
“Members that is why all of my attempts to carry this legislation and the bill language therein had the proper federal authority responsible for disposition and deportation of those that we detain,” Birdwell said.
He added that the bill would set a “terrible precedent” by violating the Constitution.
“President Biden’s failure to obey his oath does not compel us to violate ours. Instead, it compels our federal representatives to restrain him and the voters to recall him next year,” Birdwell said.
State Senator Charles Perry, the current author of the bill, defended its legality.
“While I agree that we are testing and pushing the envelope, the state has every right to protect its citizens, and this nation has every right to expect Texas to do so when called upon,” Perry said.