The Background: Preemption, Biden’s Border Policies and Operation Lone Star

In 2012, the United States Supreme Court deliberated on four provisions from Arizona’s “Support our Law Enforcement and Safe Neighborhoods Act” in the case of U.S. v. Arizona, 567 U.S. 387 (2012). In a 6-2 decision, the court found three provisions to be unconstitutional due to violating the Supremacy Clause: 

• Section 3, which created misdemeanor charges for failing to be registered as an alien; 
• Section 5(C), which made it a misdemeanor for undocumented noncitizens to seek work in Arizona; and
• Section 6, which allowed law enforcement to arrest suspected undocumented noncitizens with probable cause. 

The court also unanimously agreed that Section 2(B) was constitutional and did not preempt the federal government’s authority. Supporters of the court’s ruling proclaimed this to be an “important step” in defining the federal government’s control on immigration policy, even with the remaining concerns they had on racial profiling and how the rest of the bill could facilitate the act. Detractors of the decision, including the dissenting opinions, feel that the “heart of the bill” has still been maintained overall. Furthermore, opponents of the decision advocated for both the passing of similar laws that fit within the ruling and called on legislators to pass amendments that would make it easier for States to make laws like the act in the future.

With the decrease of COVID-19 rates during the Biden administration, both the cap on greencards obtained through families and the refugee admittance cap would be increased. Despite increased spending on border security (with a $6.5 billion increase in the Department of Homeland Security’s budget) and maintaining many Trump administration policies concerning the border, conservatives feel that the increase in both greencard and refugee caps are unsustainable. Further, conservatives express that president Biden might not truly care about the perceived border crisis, citing the 500,000 encounters on the southern border found at the beginning of the 2023 fiscal year. The sentiment is felt strongly throughout House Republicans, who began an impeachment inquiry on president Biden in relation to border policy.

Citing the Biden administration’s “refusal to secure the southern border” perceived by Texas governor Greg Abbott, the State of Texas launched Operation Lone Star. The initiative, which as of March 2022 had arrested 208,000 migrants, has been counting arrests made beyond the southern border in Texas which inflates the numbers used to show Operation Lone Star’s success. Despite these findings, governor Abbott has renewed disaster declarations for 43 counties located within the area.

What does Texas’ Senate Bill 4 do?

1. The bill creates criminal penalties for illegal entry into the United States.
2. Senate Bill 4 lets law enforcement ask individuals for papers or other documents that show legal residence.
3. It also allows law enforcement to arrest undocumented individuals for not having papers proving their residence.
4. Under Senate Bill 4, Texas judges can both hand out criminal sentences for the crime of illegal entry and hand out deportation orders for individuals who are found to be undocumented individuals.

Legal Challenges to Senate Bill 4

In response to the signing of Senate Bill 4 by Texas governor Greg Abbott, several interest groups including the ACLU intended to challenge the bill legally by filing a lawsuit alongside the County of El Paso due to the potential consequences it could have on minority groups in Texas, with the ACLU in particular calling the bill “unconstitutional”. Later on, the Department of Justice would launch a lawsuit against the State of Texas claiming that the bill preempts federal jurisdiction on immigration policy. These two lawsuits would be combined.

After the February 15th hearing held in U.S. District Judge David Ezra’s court, Judge Ezra halted Senate Bill 4 from taking into effect on the 29th of February, 2024. Judge Ezra stated that allowing Senate Bill 4 to be enacted on its original March 3rd date would cause “irreparable harm” to current federal immigration laws. On the 2nd of March, the 5th Circuit Court of Appeals based in New Orleans reversed this decision on appeal by the State of Texas with the intent of placing the lawsuit against the bill to be put on “the next available oral argument calendar”. After this, the Supreme Court of the United States then blocked the 5th Circuit Court’s decision, giving a temporary stay until the 13th of March to decide whether Texas can enact the law while being challenged legally.

Arguments in favor of Senate Bill 4

The position taken by the State of Texas and many of its representatives is that the current administration has not done enough in terms of securing the southern border, and the amount of undocumented individuals crossing through would be considered an “invasion” on Texas soil. With this, supporters such as governor Abbott state that Texas has the right to defend itself constitutionally. Supporters have also noted how the criminal penalties are identical to current federal regulation, pushing the idea presented by the Scalia and Thomas dissents in U.S. v. Arizona that would disqualify such practice as preemption.

To further their point, conservatives point out how the State of Texas has sent buses containing 65,000 undocumented individuals out of the state into democratic states to show the amount of immigrants coming into the southern border. This, alongside the measure of placing barbed wire on the border, have strengthened conservative’s convictions on the bill being legally and morally just. 

Arguments against Senate Bill 4

The largest source of criticism for Senate Bill 4 mainly stems from the U.S. v. Arizona ruling in 2012, which is used by the parties involved in the current lawsuit against Texas to determine the bill, is preempting the federal government’s rule of immigration policy. One claim about the bill states that it is rooted within nativism and is directly formed to challenge the current restrictions implemented by the Supreme Court ruling. By allowing this bill to remain, opponents of the bill fear it will incentivize other states to pass similar legislation that could preempt immigration policy.

Further concern is drawn on how the bill can increase the likelihood of racial profiling within law enforcement practices and violations of the Due Process clause when dealing with undocumented individuals. With the rise of this profiling could also come increased tensions between immigrant communities and law enforcement within the state of Texas, according to the National Immigration Forum. 
Finally, a particular concern raised by Chloe East’s research claims that bills such as Senate Bill 4 decreases employment opportunities for legal residents. The bill also contains the possibility of worsening health and economic conditions for undocumented families, alongside reducing their access to healthcare and increasing the separation of families according to her research.