(AUSTIN, Texas) — The Texas House of Representatives is expected to review on Tuesday what would be one of the strictest immigration laws in the country if passed.
SB 4 is being considered as part of the fourth round of a special legislative session ordered by Texas Gov. Greg Abbott to consider several immigration-related bills.
It creates two new state crimes for migrants who enter or re-enter into the state illegally from another country, punishable with up to two years in prison.
One of the most controversial aspects of the bill would authorize local and state law enforcement officials to arrest migrants they suspect unlawfully crossed into Texas. It also allows judges the option to order some migrants to return to the country they illegally crossed from instead of pursuing prosecution.
Officers and state agencies would be cleared to transport them to ports of entry to make sure they comply. If migrants refused to comply with 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 a circumvention of protections asylum seekers have under constitutional law and international obligations. The bill does not provide any funding or requirement to train officers on immigration law, despite the fact it would authorize them to quickly make decisions about a person’s immigration status.
“There is no U.S. federal analogue to a lone officer in their own discretion escorting someone to the border and saying get out. That is a very scary prospect that is categorically different from what the federal government does. In addition to that, 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 Texas ACLU.
There’s also growing concern that parents may be separated from their children if they are arrested under these new state crimes.
Aron Thorn, a senior staff attorney at the Texas Civil Rights Project says that if passed, the law could trigger lawsuits and an international dispute with Mexico since 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 prompt a challenge of a 2012 Supreme Court decision in Arizona v. United States which upheld the federal government’s authority over immigration enforcement. That case revolved around a law similar to SB 4, which authorized police officers to question migrants about their immigration status and arrest them.
Thorn says because the new crimes created by SB 4 only apply to undocumented immigrants, it will cause law enforcement officials to use race as probable cause apprehending people.
“We know our history is replete with 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, specifically because there is no possible way to violate this without being an alien, which means they have to have some sort of idea that you are a noncitizen and race is used as a proxy for that,” Thorn said.
A spokesperson for the Department of Homeland Security declined to comment on the specific legislation being proposed in Texas, but said the removal of noncitizens is the federal government’s responsibility.
“Generally speaking, 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 spokesperson said.
Lawmakers have reviewed several versions of SB 4 and other similar proposals throughout the year, but have failed to send it to the governor’s desk in previous sessions. Hearings have been marked by strong opposition from Democrat and Republican infighting.
During a Senate floor vote on the bill last week, Republican state Sen. Brian Birdwell, who authored a previous 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 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,” said Birdwell.
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 constrain him and for the electorate to remove him in the coming year,” Birdwell said.
State Sen. Charles Perry, the current author of the bill, defended its legality.
“While I agree we are testing and pushing envelopes, the state has every right to protect its citizens, and this nation has every right to expect Texas to do that when called to do it,” said Perry.
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