Introduction

The southern Texas border makes up for nearly half of the US-Mexico border. Because Texas shares a wide swath of its border with Mexico, Texas has often served as the door mat into the United States. Consequently, southern Texas regions often experience high influxes of migratory movement. In the wake of migration surges, Republican governors across the US perceive a lack of federal action in regulating immigration and call for state self-defense. 

Texas governor Greg Abbott has taken unprecedented legal action by signing SB4 into law, which amends the Texas Code of Criminal Procedure to allow the state to directly take on border enforcement. Chapter 51, titled “Illegal Entry Into This State,” prohibits the illegal entry into or presence in Texas by a person who is an alien, authorizes or requires local law enforcement to remove persons found in violation of the prohibitions, and creates criminal offenses. There are few exceptions: law enforcement may not arrest on school grounds, places of religious worship, health care facilities or forensic medical centers. A first offense is a Class B misdemeanor and becomes a felony if the defendant is found previously convicted of an offense. 

Other provisions of SB4 include: 

• Local law enforcement and peace officers can arrest migrants anywhere in the state, not just on private property (under Operation Lone Star, migrants could be arrested on private property). 
• People in Texas can be arrested if they entered the country without authorization up to 2 years prior. 
• The law will not target families, but single men and single women. 
• The state court can order those in violation of the law to go to Mexico, regardless of national origin.
  • Undocumented immigrants aren’t just Latin Americans. They are also South and East Asians, West Africans, Middle Easterners, etc. Thus, SB4’s provision to deport “aliens” to Mexico offloads migrants to a neighboring actor with no justification. 
• A first offense (Class B misdemeanor) would come with six months of jailtime and a second or repeated offense (second degree felony) could come with two to 20 years in prison. 

Legal Labyrinth

After the DOJ and American Civil Liberties Union filed a lawsuit challenging the constitutionality of the Texas law, the tug-of-war between different court rulings, injunctions, pauses on injunctions, holds, reconsiderations have entangled SB4 in a legal labyrinth. In total, the law may have been legal for a couple hours on March 19 and illegal by the end of the day. The conflicting rulings are far too abrupt for local enforcement to act, and the question of SB4’s constitutionality and implementation status is still confusing. Below is a rendition of SB4’s legal timeline: 

Federalism

SB4 is the culmination of a years-long confrontation between southern states and the federal government on immigration and border security. However, SB4 crosses a constitutional line. In United States v. Texas, Justice Sotomayor dissented that the “law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens.” Indeed, beginning with litigation in the 1882 Chinese Exclusion Act, the Supreme Court began to articulate a basis for federal power on immigration. The power to exclude and regulate immigrants was a function of sovereignty, where exercising jurisdiction over territory is a fundamental part of a nation’s independence. Solicitor General Elizabeth Prelogar argued that the law “would fundamentally disrupt the federal immigration regime to allow a single state to make unilateral determinations regarding unlawful entry and removal.” 

But the Texas statute was specifically designed to challenge the exclusive federal jurisdiction over immigration. In a landmark 2012 precedent case, Arizona v. United States, the Supreme Court ruled that local police didn’t have the authority to arrest someone solely based on their immigration status because that responsibility falls to the federal government. SB4 symbolizes the tension between growing fervor for states’ rights and opposing federal supremacy. Judges must balance conservative ideology on stricter immigration and conservative judicial interpretation on precedent. SB4, by challenging 150 years of precedence in immigration policy, is a legal showdown between Texas and the United States government. 

What Drives Illegal Immigration?

More and more immigrants are labeled as illegal—a distinction from lawful immigration that defines and even justifies punitive policies in curbing illegal immigration. Causes of immigration or emigration are relatively unsurprising: poverty, rampant crime, escaping political turmoil, seeking better economic opportunities, etc. But under the current immigration legal framework, lawful immigration to the U.S. is restricted to only a few narrow categories of persons. It is getting harder to qualify as a “lawful” immigrant per se, because many people do not fulfill strict qualification standards. 

The United States provides three primary means to obtaining lawful permanent residency. First, an immigrant must be sponsored by a family member with US citizenship. However, sponsors must demonstrate an income level above the poverty line and commit to financially supporting the foreign-born family member. Even if all eligibility requirements are met, backlogs for entry delay the process anywhere from five to 20 years. 

The second category requires proof of political persecution for an immigrant to obtain asylum or refugee status. However, for unauthorized immigrants fleeing economic hardships, instability does not equate to political persecution deliberately targeting one’s political beliefs, race, religion, nationality or social group. This distinction, in addition to the refugee quota of 80,000 per year, makes it incredibly difficult to obtain refugee status in America. 

The third way to obtain citizenship is for immigrants to be sponsored by a US.-based employer to work under a visa. However, these categories are limited to those with advanced degrees with highly technical specializations (those who meet such criteria are eligible for H-1B visas). Most immigrants seeking employment are largely low-skilled workers in blue-collar industries. Yet, despite the shortage of low-skilled workers in the United States, there are only 5,000 green cards available for low-skilled workers. It takes many years to secure a visa, and even then the process itself is also legally confusing—especially when legal terminology can be daunting to non-native English speakers. 

However, there are very real concerns of criminal activity at the border. An investigative report on the Chilton Ranch in Arizona reports that large cartels, like the Sinaloa cartel, have recently expanded from drug trafficking into human migration. They do so to profit from rising instability around the world and shifting immigration policies in the United States. John Modlin, a Border Patrol agent, explained in a Congressional hearing last year that “cartels determine when people cross, how many, all of that. It’s all controlled by them.” Despite rising levels of cartel violence, Latin Americans applying for asylum on the basis of organized crime violence are consistently denied. 

The Great Wall of America

We must acknowledge the reality of kidnappings, violence, and sexual exploitation at the border. At the same time, politicians’ frustration with the federal government and cartel violence is too often directed at innocent families and migrants. These immigrants have become criminalized, stereotyped, and dehumanized as political pawns. In 2022, Florida Governor DeSantis flew two planes of Venezuelan migrants to Martha’s Vineyard to force Northeastern Democrats who oppose strict immigration control to confront the reality of migrants at the southern border. In 2023, Texas Governor Abbott sent two buses of migrants to Vice President Kamala Harris’ residence in an attempt to antagonize the Biden administration’s inaction on immigration. While moving migrants from one place to another does not solve anything, it is a highly symbolic act. 

Princeton professor of sociology and public affairs Filiz Garip explains that “our immigration policy is full of symbolic (yet ineffective) acts, like building a border wall that does little to undocumented migration other than creating the illusion that politicians are doing something about it.” We can acknowledge the reality of dangerous gangs while also recognizing the humanity of people who are vulnerable to those dangers. 

Forced deportations and ICE detention camps were often the most controversial and heavily criticized facet of federal immigration policy. Yet, in addition to deploying state police and the National Guard for border enforcement purposes, Abbott recently announced a new military base camp in the border city of Eagle Pass. With a plan to house over 2,000 soldiers, it is the most significant immigration-based military infrastructure project Texas has invested in thus far. However, Texas’ approach to militarizing the border may only aggravate the situation. Increasing the legal risks associated with unauthorized migration could tighten cartels’ monopolies on human migration by creating an even larger underground market. 

From Lyndon Johnson’s “War on Crime” to Nixon’s “War on Drugs” to the 20th-century “War on Terrorism,” America is no stranger to militarizing domestic issues. But over the last few years, we have entered a new era: the War on Immigration. The common denominator of these “wars” is the heavy criminalization of particular groups. With crime, it was the impoverished; with drugs, it was Black Americans; with terrorism, it was Middle Easterns. SB4 is the first step towards a dangerous path: one that weaponizes the criminal legal system to handle issues with racial dimensions. 

Conclusion

Immigration rests in the great divide between Democrats and Republicans, and is perhaps the defining political issue in the upcoming 2024 presidential elections. SB4 has implications beyond Texas immigration policy. Depending on the outcome of this state-federal clash, the court decisions could transform future border security policies and determine voter decisions at the polls in November. But at the most fundamental level, immigration is a nonpartisan issue. 
In the words of New York Times journalist Eli Saslow, the undocumented immigration is “a humanitarian disaster. It is a drug crisis. It is a national security emergency. It is a cartel war and an American political battle.” Addressing undocumented immigration requires us to embrace the complexity of human stories, not reduce humans to “aliens.”