US Sues Texas Over New Law Authorizing State Arrests of Migrants

The Biden Administration sued the state of Texas Wednesday over a new controversial law that empowers state law enforcement officials to arrest people suspected of entering the country illegally.

Escalating a long running fight against Texas Republicans at the southern border, the Department of Justice in the lawsuit said Texas’ latest attempt to tamp down on migrant crossings is illegal. Enforcement of the border has long been handled by the federal government, not individual states, but that hasn’t stopped Texas from seeing how far it can go in challenging that separation of powers.

Senate Bill 4, slated to go into effect March 5, grants Texas state officials the power to arrest, detain, and remove individuals from the US who don’t have legal authorization to be in the country. Illegal entry can be prosecuted as a state crime as a Class B misdemeanor.

“But Texas cannot run its own immigration system,” the lawsuit says.

The lawsuit filed in the US District Court for the Western District of Texas is the second to challenge the GOP-driven law. The first came Dec. 19, a day after Gov. Greg Abbott signed the SB 4 during a ceremony at the border in the Rio Grande Valley. The plaintiffs in that lawsuit included El Paso County, a large border community of over 850,000 people.

Abbott and Texas Attorney General Ken Paxton (R) have said they welcome legal challenges to the state’s authority to make the arrests, reasoning that the issue will wind up at the US Supreme Court. There, they say they believe they can convince the court’s conservative majority that the federal government has failed to adequately enforce the border, pointing to a surge of illegal entries since Biden became president three years ago.

Last year, Border Patrol agents reported 3.2 million encounters at the border, up from 2.7 million in 202, and 1.9 million in 2021. The annual average of encounters in the four previous years was 751,000.

In the lawsuit, the DOJ says Texas’ new law would impede the federal government’s immigration proceedings.

“The state law forbids abatement of an SB 4 prosecution when the noncitizen has a pending determination of immigration status before the federal government, including an application for asylum or adjustment of status,” the lawsuit says.

The DOJ is asking the court to declare the law unconstitutional and to stop Texas from enforcing it.

Texas has been hit with lawsuits over other controversial methods to secure the border, and the outcomes in court have been mixed. Last month, a federal appeals court sided with the state, prohibiting federal border patrol agents from cutting down razor wire that Texas put up to secure a 29-mile stretch at the border. The DOJ on Tuesday appealed the ruling to the US Supreme Court.

Last month, that same appeals court—the Fifth Circuit—sided against Texas in another border security measure, ordering the removal of floating barriers that Abbott had installed in the Rio Grande.

Wednesday’s lawsuit came on the same day US House Speaker Mike Johnson made his first congressional trip to the border alongside more than 50 House Republicans.

The case is USA v. Texas, W.D. Tex., No. 1:24-cv-00008, complaint 1/3/24.