For anyone following the fate of Texas' controversial immigration measure SB4, Tuesday was a day of legal whiplash. After Texas Governor Greg Abbott signed the law in December, the federal government sued him. As a result, the law was temporarily blocked by a federal judge in February until yesterday, when the Supreme Court ruled that it could take effect. Then last night, an appeals court blocked the law, putting it on hold for a second time. The Fifth Circuit Court of Appeals will decide on the law's merits in April.
If all this legal maneuvering seems confusing, that's because it is. But let's not forget the bigger stakes here: Texas' law is unconstitutional and presents a threat to our government's balance of powers. The Biden administration is right to fight SB4, as the law could have implications for foreign policy, national security, and the safety of legal residents and Latinos in Texas.
Under SB4's provisions, state and local police basically have the power to arrest and jail people they suspect of having crossed the border in Texas without authorization. The law authorizes state judges to issue deportation orders.
Abbott signed SB4 into law in response to what he termed President Biden's "open border policies." Abbott felt justified in taking immigration matters into his own hands because "Joe Biden's deliberate inaction has decimated America."
Yet this approach flies in the face of the Constitution and Supreme Court decisions. Under the Supremacy Clause, federal laws take precedence over state measures, and we already have a federal immigration system. In addition, for over 100 years the Supreme Court has held that the power to regulate immigration lies exclusively with the federal government. In the 2012 case Arizona v. U.S., the Court again found that states may not devise their own immigration laws, citing "the federal government's broad, undoubted power over immigration."
Consider what might take place if the Biden administration were not committed to opposing SB4. Every state could potentially devise their own immigration laws, undermining our comprehensive federal system and leading to a patchwork of immigration policies. This is no exaggeration; the Iowa House of Representatives just passed its own immigration bill and sent it to the governor for her signature. If left unchallenged, SB4 could set a damaging precedent for other states taking similar action.
The Biden administration is obligated to fight SB4 because it will infringe upon the civil rights of legal residents, lawful immigrants, and Latinos in Texas. The law, while giving power to local police to check people's immigration status, does not provide guidance on how to do so. This is an invitation for racial profiling for anyone in Texas who is brown-skinned, speaking Spanish in public, or speaking with an accent. In a state where 40 percent of the population is Latino, and about 17 percent is foreign-born, fears of discrimination and profiling are very real.
There is another aspect of SB4 that is troubling as well. As the Department of Justice points out, the law interferes with U.S. foreign policy. If Texas were to begin deporting migrants on its own, it could impede our relations with Mexico and other nations. Indeed, the Mexican government has already put out a statement, noting that "Mexico will not accept, under any circumstances, repatriations by the State of Texas." So where does Texas plan to send the people it expels under SB4?
True, our country is in the throes of an immigration crisis. There have been record numbers of unauthorized crossings at our southern border, and Democratic and Republican lawmakers have expressed dissatisfaction with Biden's handling of immigration. None of this, however, gives Texas the right to unilaterally set its own immigration policy. As frustrated as he might be about illegal immigration, Abbott cannot lawfully create a system that supersedes that of the federal government.
Besides, SB4 won't make Texas safer, because it will pull law enforcement officers away from their crime-fighting duties. It will sow fear and confusion in immigrant communities. And it is doubtful that it will have any impact on illegal immigration.
SB4 represents an improper overreach of power by Texas and Governor Abbott. The Biden administration must vigorously fight this illegal, disruptive, and dangerous threat to federal authority over immigration.
Raul A. Reyes is an attorney and contributor to NBC Latino and CNN Opinion. Follow him on X: @RaulAReyes, and Instagram: @raulareyes1.
The views expressed in this article are the writer's own.
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