Society / December 21, 2023

Texas’s Latest Act of Anti-Immigrant Cruelty Is Blatantly Unconstitutional

This week, Texas passed a law making undocumented immigration illegal in the state. The question now is: Will the Supreme Court do what’s right?

Elie Mystal

Texas Governor Greg Abbott displays a signed border-security bill during a news conference at the Texas State Capitol on June 8, 2023.

(Brandon Bell / Getty Images)

Since March 2021, the government of the state of Texas, led by Governor Greg Abbott, has allocated $10 billion to “Operation Lone Star,” which Abbott calls a “border security” initiative designed to stem the flow of undocumented immigrants into the state. The money has had no discernible effect on immigration, undocumented or otherwise, and has mainly been used in the service of human rights violations, such as turning the Rio Grande into a moat designed to maim people seeking to migrate to this country.

Texas voters, a majority of them anyway, seem to be cool with this gigantic waste of taxpayer funds. The public support for this ongoing boondoggle really only makes sense in the context of racism. I don’t mean that flippantly. You can’t spend $10 billion on something that doesn’t work and experience no public outcry, political consequences, or epic memes dunking on the effort unless the point of the wasted money was to harass ethnic minorities. If you spend $10 billion on a monorail that goes nowhere, citizens notice and try to vote the politicians who approved it out of office. But if you spend the money to stop immigrants, and all you end up with is a few drowned minorities and generalized racial harassment, apparently the public claps along and asks for more.

So Texas and Abbott are giving their morally stunted voters more of what they want: racism. This time, the wished-for racism and harassment is in the form of new legislation Abbott signed into law this week. Senate Bill 4 (SB 4) makes undocumented immigration a state crime in Texas and authorizes state troopers and cops to arrest undocumented immigrants. How can they tell if a person is an “illegal immigrant” versus just a brown person walking down the street in Dallas? That’s the fun part (for racists): They can’t. SB 4 lets the police round up anybody they “suspect” of being an undocumented immigrant, and then it’s up to the undocumented immigrant (or documented immigrant or random brown person the cops hauled off the street) to prove to a judge that they are in-status.

As troubling, the Texas law doesn’t treat asylum-seekers as “legal” residents, thus making them eligible for arrest under its new racial profiling regime. That is a violation of international human rights standards, but I guess there are scores of American politicians who would be brought up on charges in The Hague if INTERPOL ever decided to hold American rulers to the same standards it applies to the ruling junta of any non-European nation that lacks nuclear weapons.

Once arrested, if the brown person in question can’t prove their status to the satisfaction of a random local judge, they can “voluntarily” agree to be deported to Mexico, or they can be jailed for six months. Repeat offenders can be charged with a felony and sentenced to anywhere between two and 20 years in prison. What if the person is not from Mexico, or is not Mexican? That’s also the fun part (for racists): It doesn’t matter. People who cannot prove their legal status will be jailed or deported back to Mexico, whether they’re Mexican or not.

Like the wall and the moat, this kind of ethnic harassment has been tried before. In addition to being xenophobic and cruel, Governor Abbott also seems incapable of producing a single creative thought. In 2010, Arizona passed Senate Bill 1070, a law that required immigrants to show proof-of-status on request, and made it a state crime to reside without documentation in the state. People called it the “Show Me Your Papers” act, because it allowed cops to harass any brown person they saw on the street.

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In 2012, in a case called Arizona v. US, the Supreme Court struck down SB 1070. The court ruled that the law violated the Constitution because it involved an individual state making immigration policy. The states do not have the right to supersede federal immigration laws by making up their own special rules as they go along.

The SB 1070 case should tell Texas that SB 4 is dead on arrival at the Supreme Court. The Texas law has the exact same problem as the Arizona one from a decade ago. So why does Texas think it will get away with SB 4 now?

Well, somewhat obviously, Texas is counting on the fact that the Supreme Court is a lot different now than it was in 2012. Back then, the court ruled against Arizona, 5-3 (Justice Elena Kagan recused herself from the case), in an opinion written by the now-retired Justice Anthony Kennedy. Chief Justice John Roberts joined Kennedy in that ruling, but two of the other votes in the majority (Justices Ruth Bader Ginsburg and Stephen Breyer) are also no longer on the bench. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, all dissented and would have upheld Arizona’s law.

Fast forward 11 years: Thomas and Alito are still there, Scalia has been replaced by Neil Gorsuch, and Ginsburg and Kennedy have been replaced by Amy Coney Barrett and alleged attempted rapist Brett Kavanaugh, respectively. The current Supreme Court is more conservative, and more racist, than it was a decade ago, and we know that the current court has no respect at all for its own precedents. Texas is simply hoping that the conservative takeover of the Supreme Court means that it can do what Arizona failed to do and start rounding up brown people in violation of their constitutional rights.

Texas asking the Supreme Court to do its bidding is nothing new. But there’s another argument that Texas is making that, while legally laughable, really pisses me off. Abbott argues that he is able to preempt federal immigration law because Article 1, Section 10 of the Constitution permits states to sign pacts with foreign governments in the event that they are “actually invaded” by a foreign power.

Here’s the language: “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

Abbott is claiming that President Joe Biden has allowed an “invasion” of undocumented immigrants into Texas, thus giving Texas the right to draft its own “foreign policy” legislation. It’s a ludicrous legal argument, but what’s really offensive here is the idea that Biden has been some kind of friend to the poor and downtrodden humans seeking a better life in this country. The reality is almost exactly the opposite: Biden has been almost every bit as ruthless and cruel toward out-of-status immigrants as his immediate predecessor. He has continued most of the policies enacted by Donald Trump, and some Trump policies he disagrees with he says he’s been forced to keep because of lawsuits from (wait for it) Texas. Biden is also willing to use these people as political pawns in order to secure more funding for the Ukraine war.

The difference between Biden and Trump on immigration is more of a matter of tone than of policy. Both men support mass deportations, holding pens, and the denial of international rights to asylum seekers. The difference is that Trump supports these things while bounding around the country and calling people names, while Biden studiously avoids using racial slurs while enacting the same racist policies. Biden’s way is better, but it’s better in that way that Northern racism is better than Southern racism, because in the North they’re not quite as proud of it.

The fact that Biden’s anti-immigration policies aren’t enough for Abbott kind of proves that SB 4 really isn’t about stopping immigration but about racially profiling brown people. But will Biden, and his useless henchman Attorney General Merrick Garland, actually do anything about Texas’s facially unconstitutional law? Arizona’s SB 1070 was overturned only because President Barack Obama’s attorney general, Eric Holder, sued Arizona over the legislation. Remember when I said that Kagan recused herself from the case? That’s because she worked on the lawsuit against Arizona when she was the solicitor general for the Obama administration, before she was appointed to the Supreme Court.

Will Garland bring a lawsuit against Texas? SB 4 goes into effect on March 1, 2024. The ACLU has already stepped in to sue over this atrocious law—but will there be a lawsuit from the Department of Justice waiting for Abbott on March 2? Or will Garland do his usual thing of slow-walking, hemming, hawing, and then finally bringing litigation in 2025, should he still be in charge after the election? Maybe the best I can hope for is that Garland will appoint a special counsel to defend brown people from racial profiling, since appointing special counsels to do his job for him is about the only thing Garland seems to get right.

In the meantime, while we wait for Garland and the DOJ to get their act together, and for the Supreme Court to intervene, Texas will be free to racially profile brown people, arrest them, and send them back to Mexico (Mexican heritage or not) should they fail to have access to a valid birth certificate or whatever papers a random local judge requires.

This is what the majority of voters in Texas want to get for their $10 billion. Not a high-speed rail system or a few world-class hospitals or a power grid that doesn’t shut down every time it gets chilly. No, they want brown people pulled off the street and sent to jail for the crime of gathering outside of a Home Depot.

And it won’t work. People will still come. The thing that always gets me about these cruel and racist immigration policies is that the Americans who pass them seem to have no idea how absolutely desperate the people are who come here. There are people willing to walk, swim, and climb to get here, willing to brave razor wire and human traffickers and some dude named Jimbo who cosplays as Border Patrol in his Ford F-150, because the scraps we throw away can mean a better life for them and generations of their family.

The people who come here are more committed than any wall, fence, or impossibly privileged presidential candidate. If Abbott were able to understand that, he’d stop wasting everybody’s money trying to stop these immigrants, and start spending money to help them.

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Editorial Director and Publisher, The Nation

Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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