Do States Have the Right to Deport Immigrants? A Look at Texas Immigration Legislature

Social Justice Policy Brief #160 | By: Devyne Byrd | April 03, 2024
Featured Photo: www.nytimes.com

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The courts continue to fight over the constitutionality of Texas’s new immigration law which is being criticized as the harshest immigration policy in modern US history. Texas Governor Abbot signed what is known as SB4 in December 2023, which made illegally entering Texas a state crime and authorized state law enforcement to stop, arrest, and jail migrants. It also grants de facto deportation powers to state judges by allowing them to deport migrants to avoid prosecution. The law has currently been blocked by the Fifth Circuit Court of Appeals after they granted a preliminary injunction. This comes after the Supreme Court denied emergency motions filed by the Biden Administration to block enforcement.

President Biden and the Justice Department have adamantly opposed the bill, stating it is unconstitutional and that immigration enforcement is exclusively under federal authority. The administration cites the Supremacy Clause, the doctrine that federal law preempts conflicting state laws, as the prevailing Constitutional objection. They also emphasize the foreign relation disputes the bill has caused with the Mexican Ministry of Foreign Affairs condemning SB4, saying it “categorically rejects any measure that allows state or local authorities to exercise immigration control, and to arrest and return nationals or foreigners to Mexican territory.” Mexico has stated that they will not accept the migrants Texas deports into their territory.

Following the short window that Texas was allowed to enforce the immigration law, Republican-controlled states moved to follow suit, considering bills that would echo the immigration policies in SB4. Louisiana legislators will consider Bill 388 which allows local and state law enforcement to arrest people on suspicions that they crossed the border illegally where they would face up to a year in prison. Oklahoma, Tennessee, and New Hampshire have all put similar bills into motion.

Civil and immigrant rights organizations have criticized SB4 and the follow-up immigration laws in other states over concerns that the laws are very likely to lead to racial profiling. Law enforcement would be empowered to question someone’s immigration status without cause or justification which will likely lead to Hispanic populations being heavily profiled and policed. The law does not specify any additional training or knowledge of the immigration process that would expand on the context surrounding the inquiry into immigration status other than suspicion.

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