WASHINGTON — The Texas Legislature may create a new state law that would give local law enforcement the power to arrest and deport undocumented immigrants — a responsibility of federal customs and border enforcement officers. Experts say it would likely trigger a legal challenge that would determine whether a state can take immigration enforcement into its own hands.

What You Need To Know

  • Texas Republicans at the state level are forging ahead with a hardline plan pushing the envelope of a state’s immigration enforcement powers

  • Critics are focusing on a proposal that would create a new state crime for unauthorized entry from a foreign country

  • Some immigration law experts say the proposed measure would be a direct challenge to longtime existing federal law and Supreme Court precedent

  • The raises constitutionality questions and heightens concerns of increased racial profiling at the local level

On Capitol Hill, Texas Republicans support an effort to impeach Homeland Security Sec. Alejandro Mayorkas over the Biden administration’s handling of the southern border. 

“You’ve got a secretary who’s getting paid billions of dollars into his agency who is not doing their number one job, which is to secure our border and protect our sovereignty,” said Rep. Beth Van Duyne, R-Irving. 

Meanwhile, Texas Republicans at the state level are forging ahead with a hardline plan acting aggressively on a state’s immigration enforcement powers, which have long been the domain of the federal government.

The plan is expected to be approved during a fourth special session of the state legislature called by Republican Gov. Greg Abbott. Another measure would pump an additional $1.5 billion into the state’s border enforcement initiative for expanding a border wall. But critics are focusing on a proposal that would create a new state crime for unauthorized entry from a foreign country. 

“The Texas law is, as currently constituted, the one that makes it a crime to illegally cross into Texas is a direct affront, a direct challenge to longtime existing federal law and Supreme Court precedent,” said Deep Gulasekaram, a law professor at the University of Colorado. 

Gulasekaram, who teaches constitutional and immigration law, said the rationales provided in the courts found that if there was going to be a national sovereign, it would be impractical for every state to have its own policies and it would create confusion as to who could be admissible. 

He said while Texas’ argument that it needs to protect itself is nothing new, he believes the state may take a gamble that conservative-leaning federal courts could be sympathetic to its case.

“What Texas is doing is essentially a cynical view of legal doctrine,” he said. “That the composition of the court itself is sufficient to change what has been long-standing precedent with regards to states the illegality of states creating their own immigration crimes and that is nakedly what they’re counting on.” 

“In the meantime, even if it gets rejected, this scores political points for the governor of Texas,” Gulasekaram continued.

Even some Republican state senators are voicing doubts.  

“We are setting a terrible precedent for the future by invalidating our obedience and faithfulness to our constitution,” said state Sen. Brian Birdwell, R-Granbury. “President Biden’s failure to obey his oath does not compel us to violate ours.”

Some immigration experts said not only does the Texas bill raise constitutionality questions, it also heightens concerns of increased racial profiling at the local level. 

State lawmakers in Texas are trying to distinguish their proposal from Arizona’s controversial “show me your papers” provision, which the Supreme Court struck down in 2012.