What we know about Gov. Abbott’s migrant executive order in Texas
AUSTIN, Texas — Gov. Greg Abbott is testing state powers to enforce federal immigration laws, citing a surge of migrants at the Texas-Mexico border.
HERE’S WHAT WE KNOW:
On Thursday, Abbott ordered state police and National Guard soldiers to take unauthorized immigrants they apprehend to the ports of entry, rather than waiting to turn them over to federal Homeland Security officials.
Nevertheless, Texas Department of Public Safety troopers and Texas Military Department soldiers still would hold in state detention centers, if possible, some of the people who they suspect are in the country illegally.
Under Abbott’s 16-month-old border initiative Operation Lone Star, in certain instances, migrants who’ve been apprehended by Texas can be prosecuted on state charges, such as trespassing.
In cases in which they’re not suspected of violating state law, only the federal law that bars entering the U.S. between the ports of entry, the migrants under Abbott’s order could be taken directly to the bridges and released.
It’s not clear exactly how that would work.
Spokesmen for Abbott, DPS and the military department have not responded to queries about whether any undocumented immigrants actually have been taken to and released at ports of entry, which are international bridges at the border.
Also, DPS spokeswoman Ericka Miller, responding to an email asking how the agency was carrying out Abbott’s order and whether state police would use force if migrants refuse to accompany them to ports of entry, said late Thursday:
“The department is acting under the direction of Governor Greg Abbott’s
Executive Order No. GA-41, which you can find here. At this time, we are unable to discuss operational specifics.”
On Friday, the military department did not immediately respond to similar inquiries.
WHY IS ABBOTT DOING THIS?
In his order, Abbott said President Joe Biden’s attempt to end expulsions under a pandemic-related health policy known as Title 42 and cancel the Migrant Protection Protocols that have forced asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts “will invite the cartels to smuggle millions more illegal immigrants into Texas.”
Abbott said illegal crossings have reached record levels.
Late Thursday, appearing on the Fox Business channel’s “Kudlow,” Abbott said Biden administration officials “want open border policies.” Texas will do whatever it takes to stop the Democratic administration, said Abbott, a Republican who on Nov. 8 is asking voters for a third term.
“Texas is stepping up trying to compel the Biden administration to actually follow the laws passed by the U.S. Congress,” Abbott told host Larry Kudlow. “And we will continue to press that cause because it is essential for American sovereignty, for Texas’ safety and for the United States of America for people to be able to come to the United States legally, but not illegally.”
With the order, Abbott said the state is “now doing the unprecedented and that is Texas law enforcement and National Guard, anybody they apprehend coming across the border illegally, they will be returning to the border.”
A White House official responded late Thursday that the federal government under Biden is installing new border technology, beefing up the budget of the Department of Homeland Security, pushing to deter human smuggling and seeking hemispheric cooperation to manage flows of migrants.
“Governor Abbott’s record on immigration doesn’t give us confidence in what he has cooked up now,” the Biden official said. “His so-called Operation Lone Star put national guardsmen and law enforcement in dangerous situations and resulted in a logistical nightmare needing Federal rescue, and his secondary inspections of trucks crossing into Texas cost a billion dollars a week in trade at one bridge alone without turning up a single case of human or drug trafficking.”
DOES ABBOTT HAVE A LEGAL STRATEGY?
Abbott could be trying to win broader latitude for states to enforce federal immigration laws. In his order, he noted that in 2012, the U.S. Supreme Court may have knocked down parts — but didn’t overturn all — of Arizona’s controversial immigration law, SB 1070.
Abbott specifically referred to a provision that in some circumstances required Arizona state and local officers to verify the citizenship or alien status of people arrested, stopped, or detained. A majority opinion by thenJustice Anthony Kennedy said state and local law enforcement couldn’t detain people for prolonged periods for not carrying immigration documents, and the cops could be sued for racial profiling. But the court left the provision, known as Section 2, standing.
John Yoo, a University of CaliforniaBerkeley law professor, said that with recent changes in the court’s composition, Abbott may be trying to provoke a suit that would spur the court to reconsider its ruling in Arizona vs. U.S.
“It’s quite clever,” said Yoo, who served in the Justice Department under former President George W. Bush. “He is going to provoke a lawsuit to test the Arizona case to see if … he can overturn it.”