Three years ago, Texas lawmakers passed a landmark law that would let state police arrest people suspected of having entered the country illegally by crossing the border, after which an injunction was issued that block Senate Bill 4 from taking effect.
Such authority has long been the sole responsibility of the federal government, but the state’s Republican leaders said Texas, which shares about 1,250 miles of border with Mexico, had a constitutional right to protect its sovereignty as the number of illegal border crossings hit record highs under the Biden administration. Since that time, illegal migrant encounters have fallen to a record low, a sharp reversal from when the law was passed. Border Patrol agents working in Texas — home to five of the agency’s nine sectors along the border — recorded just 4,265 migrant apprehensions in December, the most recent month for which federal statistics are available.
SB 4 would make it a state misdemeanor to illegally cross the border and authorize Texas officers to arrest undocumented immigrants. It would also require state magistrate judges to order people arrested for illegal entry — a new state charge created by SB 4 — to leave the U.S. for Mexico in lieu of prosecution, or if they are convicted.
If the Fifth U.S. Circuit Court of Appeals removes the injunction that has blocked SB 4 from taking effect, the state would further solidify its already outsized role in immigration enforcement.
If the court keeps the injunction in place, Texas authorities would still be poised to continue the unprecedented role they have played in aiding the Trump administration’s immigration crackdown, even with SB 4 off the books. State GOP leaders would probably appeal to the U.S. Supreme Court, giving them a possible forum to reconfigure legal precedent that largely prevents states from enforcing immigration law.
The Biden administration swiftly moved to block the law, arguing in a suit filed weeks after SB 4’s passage that the measure was unconstitutional because the policing of immigration — including oversight of who is allowed into the country and the removal of people without proper documentation — rests in the federal government’s hands alone.
The legal challenge has continued through a case brought by a group of civil rights organizations and El Paso County. Last summer, a three-judge panel from the Fifth Circuit upheld an injunction blocking SB 4, reinforcing a lower court’s finding that the federal government is the main enforcer of immigration law.
The state of Texas appealed, asking to have the case reheard by the entire circuit court, which made the rare move of granting the request. The conservative circuit court — which hears appeals from Texas, Louisiana and Mississippi — has 17 judges, 12 of whom were appointed by Republican presidents, including six by Trump.
El Paso County officials estimate that SB 4 would result in 8,000 more arrests each year, which they say would strain local jails and courts, and without funding from the state to cover the costs.
In response to the Trump administration and the quiet border, the state has redirected law enforcement previously stationed at the border to helping the federal government with its deportation crackdown across the state.
Texas Department of Public Safety officers have helped arrest thousands of undocumented immigrants for deportation. More than 200 law enforcement agencies across the state have entered agreements with U.S. Immigration and Customs Enforcement that grant local officers limited immigration authority. Texas accounts for roughly onefifth of all agreements that ICE has inked with local law enforcement agencies, second most behind Florida.
Should SB 4 go into effect, that role would be further expanded with a green light to handle deportations without needing signoff from the feds since the only way to achieve mass deportations is by working with local law enforcement.