© Reuters. FILE PHOTO: Workers assemble a string of buoys, to deter migrants from crossing the Rio Grande river, at the international border with Mexico in Eagle Pass, Texas, U.S. July 27, 2023. REUTERS/Adrees Latif/File Photo
By Daniel Wiessner
(Reuters) – Efforts by Republican Texas Governor Greg Abbott to stem a record number of migrants illegally crossing the U.S.-Mexico border has set off a series of legal battles with the administration of President Joe Biden, a Democrat.
Those cases could ultimately determine how much power, if any, states possess to police international borders when they disagree with federal immigration policies.
The most sweeping effort made by Texas to address illegal migration is a new law known as SB4 that Abbott signed in December making it a state crime to illegally enter or re-enter Texas from a foreign country. The law, set to take effect in March, gives state law enforcement the power to arrest and prosecute violators and allows judges to order migrants to leave the U.S., with up to 20-year prison sentences for migrants who refuse to comply.
The Biden administration has sued to strike down the law, claiming it interferes with the federal government’s exclusive powers to police the border and enforce immigration laws. A similar lawsuit has been filed by civil rights groups which say the law blocks migrants from seeking asylum and other humanitarian relief.
Abbott and many other Republicans have said border states have no choice but to act in the face of alleged failures by Biden to address the increase in border crossings, which have reached record highs in recent years.
In defending the law, Texas will have to contend with a 2012 U.S. Supreme Court ruling that struck down key provisions of an Arizona immigration law. The court in that 5-3 decision said states cannot make their own laws that interfere with the federal government’s ability to enforce U.S. laws.
But the Supreme Court has become more conservative since then, so Texas could have a more sympathetic audience if the justices ultimately take up the case.
Texas is also seeking to prevent the federal government from destroying or removing concertina wire fencing that the state has placed along a 30-mile (48-km) stretch of the Rio Grande river near Eagle Pass, Texas, which forms the border with Mexico. Texas sued the Biden administration in October over what it said was an intensified practice by U.S. Customs and Border Protection agents of destroying fencing that the state had strategically placed on private land with the landowners’ permission.
The administration has said the fencing interferes with the ability of U.S. Border Patrol agents to reach migrants who are in distress and to access patrol boats. A New Orleans-based U.S. appeals court temporarily blocked federal agents from disturbing the fencing while litigation over the issue proceeds, but the Supreme Court on Jan. 22 paused that ruling pending the outcome of the case.
Texas in its lawsuit claims that by destroying the wire, federal agents are violating the state’s property rights. A key issue in the case is whether the federal government is immune from facing the state’s claims.
Texas is also defending its ability to maintain a 1,000-foot-long 1,000 feet (305-meter) floating barrier in the Rio Grande river that divides the U.S. and Mexico near where it has placed concertina wire. Days after four migrants drowned in the river last July, the state installed the string of buoys, prompting a lawsuit by the Biden administration.
The lawsuit claims that Texas was required to seek permission from the federal government before installing the buoys because they were placed in navigable waters, which are governed by federal environmental laws.
A three-judge panel of the 5th U.S. Circuit Court of Appeals – the same court that is hearing the razor wire case – sided with the Biden administration in December and said the buoys had to be removed to Texas’ side of the river bank. But the full appeals court, which is made up mostly of Republican appointees, has said it will reconsider that decision and is scheduled to hear arguments in May.