Author: Mauricio Madrazo

The Background: Mexico, Biden, and Operation Lone Star

The United States has had tense relations with Mexico when it comes to border security since Andres Manuel Lopez Obrador’s election into the Mexican presidency. This has been due to the implementation of the “Security and Foreign Agents” law implemented in Mexico, which significantly strains U.S. operations on the Mexican side of the border for preventing undocumented immigration. Despite the legislation, the Lopez Obrador administration has shown its willingness to discuss border security with Biden administration officials such as Secretary of State Anthony Blinken and others.

The Biden administration has done the following in Immigration and Border Protection policy:

• Increased the refugee cap from 18,000 to 125,000 individuals
• Expanded access to family based green cards through the per-country caps
• Increased the annual total of diversity visas to 80,000

Despite this, Republicans believe that the measures taken by the Biden administration are not enough to handle the supposed “crisis at the border”. This claim includes the accusation of not enforcing border protection policies in any capacity. Citing these criticisms of the Biden administration, Texas Governor Greg Abbott launched Operation Lone Star in 2021 to address the issue of undocumented migration.

The initiative has claimed to have arrested 208,000 migrants, However, reliable sources have noted that arrests made beyond the southern border are being counted within figures released by the State of Texas. There are no concrete numbers on how many of these arrests are actually made on the border due to this data error. Despite this, governor Abbott has renewed disaster declarations for 43 counties located within the Texas border. He also began the deployment of 10,000 National Guard troops in 2021.

Rundown of the Standoff

On the 10th of January, 2024, National Guard troops placed by Governor Abbott blocked federal agents from entering Shelby Park in Eagle Pass. The agents, who were attempting to place surveillance apparatuses, were barred from entering the area while National Guard troops erected more barbed wire fencing on the riverside. On January 12th, 3 people (2 being children) drowned in Shelby park while agents were blocked from entering the area. After a week and a half of petitioning from the federal government, the Supreme Court of the United States allowed federal agents to remove the wire fencing and ordered the State of Texas to allow federal agents into Shelby Park.

National Guard troops would still be stationed in the area and keeping track of which federal agents enter the park, but they let said agents operate without restriction. On the 16th of February, Governor Abbott doubled down on his efforts for maintaining the National Guard in the area by promising the construction of an 80-acre base camp near Eagle Pass. The facility is set to house 1,800 to 2,300 National Guard troops, including those sent by states such as Georgia. This is despite reports of 1-in-5 troops having issues with payment for their deployment and shortages of equipment and supplies for National Guard troops stationed at the border.

Who Gets Affected?

The residents of Eagle Pass have been dealing with an unprecedented amount of military presence in their community. When asked about the situation that has unfolded, residents such as Carlos Herrera state that they want their community to go “back to normal”. The scene described in Eagle pass is compared to a “warzone in a third world country”. Although some residents are grateful for the increased efforts in border security, many believe the militarization of the border is a step too far. Furthermore, residents have also encountered a heightened amount of political protests making trips to Eagle Pass. One group, which has described itself as an “army of God”, is a convoy of trailer truck drivers wanting to ramp up support for the National Guard and their efforts in Shelby Park, as well as for former president Donald Trump in his re-election campaign.

After the takeover of National Guard troops at Shelby Park, an incident transpired in which 3 undocumented individuals drowned in the Rio Grande while attempting to cross illegally. This happened after federal agents were tipped off about their crossing and attempted to enter the Shelby Park area, which at the time National Guard troops refused to allow access to. According to residents, since the takeover of Shelby Park there have been more political protests and livestreamers in the Eagle Pass area than actual undocumented individuals attempting to cross through Shelby Park.

Support for the Standoff

Governor Abbott and many Texas Republicans have cited the “Invasion Clause” found within the U.S. Constitution due to the large influx of undocumented migrants crossing into Texas. Abbott has further claimed that the Biden administration is taking insufficient measures to counteract illegal immigration describing those who cross undocumented as “gang members” and “members of terrorist watchlists”. Attorney General Ken Paxton has gone as far as to say that Biden is “in partnership with the cartels”. 

Republicans have also cited both the concern of human trafficking on the border and the increase of drug smuggling for narcotics such as fentanyl on the southern border. 13 Republican governors have flown into Eagle Pass with the explicit purpose of showing support to the efforts of Operation Lone Star and the National Guard troops stationed at Shelby Park.

Critiques of the Standoff

Legal experts view the “Invasion Clause” within the context of when it was drafted, and after determining the state of the country during the revolution they summarize that a textualist interpretation would not hold up today due to how drastic our political situation is. Further, the act of describing illegal immigration as an “invasion” was analyzed in Padavan v. New York. The Supreme Court of New York determined that even if we were to view the damage done by undocumented migration on the same level as a formal invasion from a foreign country, there is no clear political body or structure that is attempting to overthrow our own which disqualifies their action from an “Invasion Clause” violation.

Aside from jurisprudence disagreements, the opposition to the standoff have claimed the escalation to be an overstep in jurisdiction. Rather than seeing the claims being made by the State of Texas when it comes to border policy as legitimate, some have elected to view this as one of many attempts by the State of Texas to defy current Supreme Court jurisprudence with the goal of overturning U.S. v. Arizona. Some of the heavier accusations levied against supporters is how their ideologies are “extremist”, with said ideologies being compared to the January 6th insurrectionists.
Residents of Eagle Pass are uncomfortable with the militarization of their town, with calls to return to normalcy being common. The Eagle Pass real estate agent Carlos Herrera stated that residents “wish everything could go back to normal.” Despite this, Herrera discusses how many such as himself feel as if there is nothing they could do to stop or reverse the actions taken by National Guard troops stationed at Eagle Pass.

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.