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A controversial Texas state law that empowers local authorities to deport migrants illegally crossing the border is being buffeted by legal whiplash. Earlier this week, the conservative majority in the Supreme Court cleared the way for the law, known as S.B. 4, to be enforced. But only hours later, a federal appeals court blocked enforcement of the law ahead of subsequent deliberations. The proceedings are expected to make their way back to the Supreme Court.
The law makes it a state crime for migrants to illegally cross the border and allows Texas judges to order the deportation of undocumented individuals — even though such measures regarding immigration are the province of federal authorities. Critics in the United States and abroad have warned that it is unconstitutional, counterproductive and creates a climate of fear in Texas where anyone potentially suspected of being an undocumented migrant can be subject to questioning by local police.
The legislation comes amid an intensifying presidential election cycle, in which Republicans are hoping concerns over surges in illegal crossings will play in their favor. Texas Gov. Greg Abbott (R) is a fierce critic of President Biden and has repeatedly clashed with the administration over the perceived crisis at the border. But beyond the legal challenges thwarting the law’s enforcement, it faces a major political obstacle: cooperation, or the lack thereof, from Mexico.
Mexican President Andrés Manuel López Obrador denounced the measures as “draconian,” as well as “dehumanizing” and “anti-Christian,” during a news conference on Wednesday. He warned against any precedent that leads to local state entities superseding federal authority on matters of immigration on both sides of the border.
“It’s as if the governor of Tamaulipas applied a law against Texans who were visiting Mexico or passing through Tamaulipas,” López Obrador said, referring to the northeastern Mexican state. “According to our constitution, anything that is related to foreign policy is not the responsibility of state governments.”
In an interview with The Washington Post, Mexico’s top diplomat concurred. “We are not going to accept any return, either of Mexicans or non-Mexicans, from local, state or county authorities in Texas,” Foreign Minister Alicia Bárcena told my colleague Mary Beth Sheridan in Mexico City. She added that the Texas law, when enforced, would compel Mexico to step up its security presence at U.S. border crossings into Texas, raising the prospect of standoffs between Mexican officials and Texan counterparts over attempted deportations.
Abbott and his allies cast the legislation as an emergency response to an “invasion” of migrants, invoking de facto wartime powers. A district court judge ruled last month that the situation at the border does not constitute an “invasion.” The number of people taken into custody by the U.S. Border Patrol has reached the highest levels in the agency’s 100-year history under Biden, averaging 2 million per year, as my colleagues reported.
Liberal justices on the Supreme Court were scathing about Abbott’s efforts in their dissent. “This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” wrote Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson.
“Could I be detained because I’m Brown, speak Spanish fluently and look like someone who crossed into Texas illegally?” Jorge Dominguez, a staff attorney for Las Americas Immigrant Advocacy Center and a U.S. citizen, told The Post. “This law essentially makes anyone like me vulnerable to any law enforcement officer in the state who wants to play the game ‘Guess the Immigrant.’”
Asylum seekers in limbo in the United States’ snarled immigration system are worried, too. “Some people say we can be deported. Others say we’ll be arrested if we leave this shelter,” Maria Alejandra Seijas García, a 23-year-old from Venezuela who is staying at a refuge for migrants in El Paso, told my colleagues. “It just seems unfair to me. Shouldn’t we be protected if we are in an asylum process?”
Mexico is in the run-up to a bitter presidential election. But the Texas law has provoked an unusual moment of unity between the two front-runners — Claudia Sheinbaum, a López Obrador ally, and Xóchitl Gálvez, the main challenger from the opposition — who both have criticized the legislation and U.S. treatment of migrants. Still, Mexico has cooperated with U.S. demands for more crackdowns on migrant flows and human trafficking networks, and agreed last year to receive deportees from four countries — Nicaragua, Haiti, Venezuela and Cuba.
“Mexico says it has accepted such measures for humanitarian reasons, and to help its neighbor,” reported Sheridan. “In return, analysts say, the Biden and Trump administrations have muted their criticism of López Obrador on non-immigration matters — such as democratic governance. The president has weakened some of the institutions that have underpinned Mexico’s 21st-century transition to democracy, calling them expensive and biased toward the opposition.”
Analysts argue that the United States only has itself to blame for this predicament, given the ongoing inability of Congress to push through bipartisan immigration reform that could relieve some of the pressures on the border and smooth out delays in asylum applications. They say the current backlog of cases gives hope to many would-be applicants with less-deserving cases to attempt to use the asylum track to enter the country. But House Republicans, in large part directed by former president Donald Trump, recently spiked legislation that could address some of these concerns.
“No issue illustrates the breakdown of governing and politics better than immigration,” my colleague Dan Balz wrote last month. “A broken immigration system has broken the governing process, aided by the most cynical of politics.”
“It is hardly crazy that Mexico’s president would deploy what leverage he has to ensure some favorable political outcome,” noted Washington Post columnist Eduardo Porter. “The United States has played that game for years. What is preposterous is that the U.S. political system (here’s looking at you, Speaker Mike Johnson) would expose the United States to this kind of manipulation.”