Experts say Texas bill making border crossings illegal faces likely court defeat

A Texas bill that would give the state power to arrest and charge people for illegally crossing the border from Mexico is all but certain to be overturned on a constitutional challenge, legal experts say.

Gov. Greg Abbott is expected to sign Senate Bill 4, a controversial measure passed by the Republican-controlled Texas Legislature that would let police arrest and charge people they suspect of crossing the border illegally. The first offense would be punishable by up to six months in jail and the second could bring a sentence of up to 20 years. However, a judge could drop charges for migrants who agree to return to Mexico.

Immigrant-rights advocates warn the proposal will lead to a jump in racial profiling and create legal hassles for immigrants who are here legally. Beyond that, they point out that the Constitution clearly defines immigration enforcement as a federal responsibility.

"I don't thing this is so much a question about how you feel about immigration as it is how you feel about the Constitution," said veteran immigration attorney Hector Quiroga of Spokane, Washington. "The definition in the Constitution is pretty clear that any issue of sovereign immigration is really left to federal authorities."

In response to a similar proposal passed in Arizona, the U.S. Supreme Court ruled that states can't arrest people based solely on their immigration status. Under the U.S. Constitution, that enforcement is given exclusively to the federal government, the high court ruled.

Democrats in the Texas Legislature brought up similar concerns during debate on SB 4, and both the ACLU and the League of United Latin American Citizens have threatened lawsuits to stop the law.

“The power to enforce immigration is unquestionably, exclusively a federal power,” Texas Rep. Victoria Neave Criado, D-Dallas, the chair of the Mexican American Legislative Caucus, warned as debate on the legislation got underway.

State Rep. David Spiller, R-Jacksboro, who sponsored SB 4 in the Texas House, told the Texas Tribune the bill is constitutional because it follows federal immigration law. Other GOP lawmakers said they believe the U.S. Supreme Court's conservative supermajority may be willing to allow SB 4 to stand.

However, Quiroga said the conservative-dominated Supreme Court is likely to recognize the dangerous precedent of allowing states to usurp federal authority on immigration.

If the court allows Texas to set up its own immigration enforcement apparatus because it doesn't like the job the feds are doing, would states be able to do the same with regard to Social Security or federal tax collection, he asked rhetorically.

While Texas has a right to call attention to problems with the current immigration system, Quiroga said SB 4 does so in a polarizing way — and in a manner that's likely to result in racial profiling and confusion for local and state law enforcement.

Further, Abbott — who served both as Texas attorney general and on the Texas Supreme Court — is aware the proposal is unlikely to stand up to legal challenges, the attorney added.

"He knows better," Quiroga said. "This not a complex constitutional question. This is about the potential endorsement of President Trump or seeking perhaps a vice presidential spot."

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