On Monday, Texas Gov. Greg Abbott signed Senate Bill 4, which allows police to arrest people on charges of “illegal entry into or illegal presence in this state.” Those arrested under the law can be jailed or expelled from the United States. This is part of Abbott’s pattern of inhumane and often illegal actions that he’s taken against migrants.
The “show me your papers” law elevates state courts over federal proceedings in multiple ways. It specifically forbids any Texas court from refusing to prosecute on the basis that an immigrant is still awaiting proceedings by federal authorities to determine their immigration status. It also excludes immigrants who are protected under the Deferred Action for Parents of Americans and Lawful Permanent Residents program. The law forbids local jurisdictions from releasing those arrested under this law under community supervision. Those held have to be tried, expelled, or jailed.
The bill isn’t just another in the long line of Abbott’s attempts to paint migrants as an existential threat and to treat those seeking to enter the United States as criminals. He’s made clear this is deliberately written to force a revisit of a 2012 Supreme Court ruling in a bid to strip control of the border from the federal government.
“We think that Texas already has a constitutional to do this,” Abbott said at the signing ceremony, “but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case.”
Since taking office, Abbott has lined parts of the Texas border with razor wire, turned the Rio Grande River into a death trap, bused immigrants to Washington, D.C., without providing any information on where they should go, and cooperated with Florida Gov. Ron DeSantis to send flights of immigrants to cities and towns where there are no facilities prepared for their arrival.
Local law enforcement in Texas has been arresting immigrants on misdemeanor charges of criminal trespass under Abbott’s “Operation Lone Star” for over two years. As Gabe Ortiz reported in 2021, experts slammed Abbott’s program as “unconstitutional and fascist.” Many of those arrested have been released without charges, but that often comes only after they have been held for weeks or months in overcrowded local facilities.
The New York Times notes that many local sheriffs are less than enthusiastic about the additional “power” Abbott is granting them with the new law. Local courts are unprepared to deal with a large number of immigrant cases, and arresting even a fraction of those attempting to cross the border could flood local jails. Under the bill, local officials have few options but to try and remove immigrants as quickly as possible, which could slow proceedings for anyone facing other charges.
The wording of the bill also creates a list of locations where people cannot be arrested: schools, hospitals, and churches. This provision seems designed to create images of immigrants seeking asylum in these locations, with law enforcement laying siege outside. It could also create even more crowded conditions and confusion at border crossings, as Mexico has no obligation to allow non-Mexican citizens back into Mexico.
Primarily, the law seems tailor-made to act as the first step in bringing the Supreme Court to revisit its decision in the 2012 Arizona v. United States case. That case involved an Arizona law that, just like the law signed by Abbott, made it a crime for undocumented immigrants to be present in the United States, required law enforcement to verify the citizenship of anyone arrested or detained, and authorized arrests of people believed to have crossed the border illegally. The federal government argued that the Arizona law improperly created a state crime for violation of federal law and that state and local law enforcement were not entitled to determine citizenship status. In a 5-3 ruling, the court held with the federal government. It agreed that local authorities could ask about citizenship but only to provide information to federal officials.
But that was 2012. And two of those who made up the majority in the decision were Justices Ruth Bader Ginsberg and Stephen Breyer. Hard-right conservatives have been eager to get a case along the same lines back in front of the much more conservative, post-Donald Trump court, where they feel the justices would be much more likely to strip power from the federal court and hand it over to the state.
In a letter sent immediately after Abbott signed the law into effect, Democratic members of Congress wrote to Attorney General Merrick Garland, asking the Department of Justice to intervene. The Texas law goes into effect in March. It’s unclear if the federal government has standing to take the issue to court before that date.
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