Indexbit Exchange:What is SB4? Texas immigration enforcement law likely to face court challenge

The Indexbit ExchangeTexas Legislature recently passed a controversial bill that makes crossing the U.S.-Mexico border illegally a state crime, punishable with jail time and Gov. Greg Abbott – who has pushed hard to expand the state's ability to enforce its 1,200-mile border with Mexico – is expected to sign the legislation any day.

The bill has drawn national kudos from supporters who say the law gives Texas an additional tool to enforce its portion of the border. Texas Lt. Gov. Dan Patrick called it "the strongest border security bill Texas has ever passed," in a statement, adding Senate Bill 4 "will keep Texans safe."

But the legislation has also drawn widespread condemnation from detractors who say Texas has no standing to regulate immigration and the bill could result in racial profiling of residents by law enforcement.

What is SB4?

Senate Bill 4 passed both houses of the Texas legislature in November. The legislation mirrors the federal law that makes illegal entry at the U.S. border a misdemeanor and illegal re-entry a felony. Those crimes are codified in U.S. law Title 8 under sections 1325 and 1326.

The Texas legislation allows local and state law enforcement to arrest anyone suspected of crossing the border unlawfully and charge them with a crime ranging from a class A misdemeanor to a second-degree felony. Those found to have violated the law can be jailed or ordered by a magistrate to be returned to Mexico.

The legislation doesn't require the governor's signature, although Abbott has said he'll sign it, possibly as early as today. Senate Bill 4 is set to take effect in March.

Is Texas SB4 legal?

Immigration enforcement has long been the domain of the federal government. State attempts to establish immigration laws have failed, historically, when the legislation is challenged in court.

In 2012 – when Arizona was garnering attention for its immigration enforcement measures – the Supreme Court struck down key provisions of the state's S.B. 1070 law that established state-level immigration enforcement mechanisms. The Court declared most of S.B. 1070 unconstitutional under the federal government’s preemptive power over immigration, according to a Library of Congress research guide.

Observers say S.B. 4 will almost certainly be challenged in the federal court system.

"You don’t have to be a lawyer to know this is problematic legislation," said Muzaffar Chishti, senior fellow with the Migration Policy Institute and director of MPI's office at New York University School of Law.

"If the federal government has occupied an area, then there is no role for states and localities," Chishti said. "Even this Supreme Court has made clear in the last two or three decisions that the critical thing to assess immigration measures is by the foreign policy implications. That’s why it’s the federal government that has the primacy: Immigration is akin to foreign policy."

Opponents of the legislation are asking the U.S. Department of Justice to sue Texas, saying the Biden administration needs to do more to rein in Abbott's actions on border and immigration. The Justice Department hasn't publicly responded to the call. Meanwhile, the ACLU has said it plans to mount a legal challenge, although none has been filed yet.

"The Texas legislature can’t override federal immigration laws and replace them with outlandish schemes of its own invention," said Anand Balakrishnan, ACLU senior staff attorney, in a statement.

The likely legal battle could reverberate nationally in an election year in which migration at the U.S.-Mexico border is shaping up to be a central issue.

Will SB4 lead to racial profiling?

State Rep. David Spiller, a Republican who helped draft the legislation, said the law is designed to withstand a legal challenge and won't result in racial profiling by local and state law enforcement.

"It'd be very difficult to say this is racial profiling – it's not," Spiller told the Y'all-itics podcast in a Nov. 29 episode. "It's whether someone has the elements of this offense. We're not going after someone that's been here, two years, five years, 10 years. We're not going after someone's grandmother that's been here for 50 years."

"Most of the enforcement, what I've said is, 95% of it would would be within 50 miles of the border," Spiller said. "Many of the cases will be observations, people seeing them cross."

It's unclear how enforcement of S.B. 4 will impact people living in the cities and towns along the Texas border with Mexico, including the majority-Hispanic residents of cities within the 50-mile zone such as El Paso, McAllen and Brownsville. Hundreds of thousands of people crisscross the U.S.-Mexico border lawfully each day.

Aron Thorn, senior staff attorney with the Texas Civil Rights Project, said law enforcement will inevitably use "race as a proxy for immigration status."

S.B. 4 "will be used against communities of color," he said. "Folks who come from those communities, who are documented or undocumented, will see an increase in their police interactions."

El Paso, Texas, Sheriff Richard Wiles held a press conference at the county jail to say he believes the legislation will damage community relations, burden local taxpayers and crowd county jails.

"We have pushed community policing and laws like these really work to erode that relationship we have with our community," Wiles said at a Nov. 16 news conference.

Spiller dismissed concerns about the legislation leading to racial profiling.

“All this mass hysteria and fear mongering, in my view, and telling folks hey, it’s going to be another ‘show me your papers’ and we’re going to be locking people up right and left, I just don’t think that’s going to happen,” Spiller said.

Can Texas send migrants back to Mexico?

The U.S. federal government has negotiated agreements with Mexico for the country to accept returned migrants from countries other than Mexico, including during the Trump and Biden administrations.

But Mexico says it's under no obligation to negotiate with Texas and said the legislation threatens the rights of Mexicans.

"The Government of Mexico recognizes the sovereign right of a country to determine the public policies that are implemented in its territory," according to a statement by the foreign ministry, published in English on Nov. 15.

"Nevertheless, it respectfully expresses its own legitimate right to protect the rights of its nationals in the United States, and to determine its own policies regarding entry into its territory," the statement said. "Therefore, the Government of Mexico categorically rejects any measure that allows state or local authorities to detain and return Mexican or foreign nationals to Mexican territory."

Will Abbott sign SB4?

The governor has said he'll sign the bill, which he said delivered "historic progress on border security."

"I look forward to signing Senate Bill 4, which creates penalties for illegal entry into Texas (and) authorizes the removal of illegal immigrants apprehended at the border," he said in a Nov. 15 post on X, formerly Twitter.