Florida and Texas Bills Go On Offense against Illegal Immigration

FAIR Take | March 2023

Over the past few weeks, legislators in Florida and Texas have introduced bills to aggressively tackle the problem of illegal immigration in their states. Following the example of their governors, who have taken the lead on countering the Biden administration’s open-border policies, these bills are more likely than ever to pass.

Florida

At a press conference in Jacksonville on February 23, Florida Governor Ron DeSantis (R) announced a comprehensive package of legislative proposals to “counteract President Biden’s Border Crisis.”  Building on past legislative victories and the recommendations of a statewide grand jury empaneled by the Florida Supreme Court last year at his request, the governor proposed that Florida:

• increase penalties for human smuggling;
• require universal use of E-Verify by all employers;
• enhance penalties for document falsification;
• invalidate all out-of-state driver’s licenses issued to illegal aliens;
• prohibit local governments from issuing ID cards to illegal aliens;
• require those registering to vote to affirm both national and state residency;
• eliminate in-state tuition for illegal aliens;
• eliminate authorization for illegal aliens to practice law; and
• “[c]lose[ ] loopholes that allow illegal aliens to be released from ICE detention” (the so-called victim/witness exception to the state’s anti-sanctuary law that otherwise requires law enforcement to honor immigration detainers issued by Immigration and Customs Enforcement (ICE)).

As he unveiled his legislative agenda, DeSantis stressed that “Florida is a law and order state, and we won’t turn a blind eye to the dangers of Biden’s Border Crisis.  We will continue to take steps to protect Floridians from reckless federal open border policies.”

On March 7, the opening day of Florida’s legislative session, several bills were introduced in each chamber of the legislature to turn the governor’s proposals into law: Senate Bill (SB) 1718, sponsored by Senator Blaise Ingoglia (R-Spring Hill), and House Bill (HB) 1617, sponsored by Representative Kiyan Michael (R-Jacksonville), an Angel Mom whose son Brandon was killed in a car crash by a twice-deported illegal alien.

Lamenting the situation that brought forward his legislation, Sen. Ingoglia noted “[i]t is unfortunate that state governments are having to step in to protect their residents from the incompetence and unlawful open border policies of the Biden Administration,” adding, “SB 1718 is the most comprehensive and strongest, state-led anti-illegal immigrant piece of legislation ever put forth. This should be the model for all 50 states going forward to push the federal government into finally doing its job and fixing a crisis they have created.”

The only part of the Governor’s legislative proposal that has yet to be introduced is the repeal of in-state tuition for illegal aliens.  This has divided some of the state’s Republicans, as in-state tuition in Florida was itself adopted in 2014 by a Republican legislature and signed into law by Republican then-Governor, now U.S. Senator, Rick Scott.  It was also supported by now-Lieutenant Governor Jeanette Nuñez (R) and Education Commissioner Manny Diaz Jr. (R), who were both state legislators at the time.  Sen. Scott has criticized the proposal as “unfair,” saying “it’s a bill that I was proud to sign. … It’s a bill I would sign again today.”

However, Sen. Ingoglia is committed to including in-state tuition repeal in the final version of his bill, saying “I personally believe that we should do away with in-state tuition for illegal immigrants … That is reserved for people who are legal residents of the state of Florida.”  Lt. Governor Nuñez and Commissioner Diaz have also both publicly reversed their previous positions, saying in-state tuition should be repealed as they believe “[t]imes have changed … unfortunately the Biden Administration has created a crisis.”

SB 1718 has already begun advancing through the legislative process. On March 15, it was voted favorably out of the Senate Rules Committee by a 15-5 vote, along party lines. It has now been referred to the Senate Fiscal Policy Committee.

HB 1617 has been referred to the Commerce, Judiciary, and Appropriations committees in the House of Representatives and has not been yet been scheduled for a hearing.

The Florida Legislature is scheduled to adjourn on May 5.  While all the details will have to be worked out over the course of the session, it is a near-certainty that one of these bills will pass in some form and be signed into law by Gov. DeSantis.

Texas

In response to the Biden border crisis, Gov. Greg Abbott (R) launched Operation Lone Star in March 2021 saying “Texas supports legal immigration but will not be an accomplice to the open border policies that cause, rather than prevent, a humanitarian crisis in our state and endanger the lives of Texans. We will surge the resources and law enforcement personnel needed to confront this crisis.”

The following summer (July 7, 2022) Abbott issued an executive order condemning President Biden for failing to secure the border and invoking two clauses of the U.S. Constitution: the Invasion Clause and the Self-Defense/War Powers Clause.  The Invasion Clause, Article IV Section 4, provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.  The Self-Defense/War Powers Clause provides, in pertinent part, that “[n]o State shall, without the Consent of Congress … enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”  According to a legal opinion issued by former Arizona Attorney General (AG) Mark Brnovich, these clauses provide states with war powers when necessary, including the authority to repel illegal aliens back across the border.

Texas has surged resources to the border over the past two years, including building its own border wall, and now bills have been introduced in both chambers of the legislature to significantly expand the state’s powers to fight illegal immigration directly.

In the Texas House of Representatives, Rep. Matt Schaefer (R-Tyler) introduced HB 20, which would create a Border Protection Unit under a director appointed by the governor.  This agency would coordinate and spearhead all of Texas’s efforts regarding the border, and illegal immigration more broadly.  It would also have the authority to arrest, detain and “repel” illegal aliens back across the border.  Also citing the Invasion Clause and the Self Defense clause, it declares that “[t]he Legislature, acting with the governor, has the solemn duty to protect and defend the citizens of Texas … Texas is in such imminent danger as will not admit of delay.”

HB 20 has been referred to the House State Affairs Committee, but has not yet been scheduled for a hearing.  However, House Speaker Dade Phelan (R-Beaumont) strongly supports it and has declared it a priority, saying, “[a]ddressing our state’s border and humanitarian crisis is a must-pass issue for the Texas House this year.”

In the Texas Senate, SB 2424, sponsored by Sen. Brian Birdwell (R-Granbury), would make unlawfully crossing an international border into Texas a state crime, punishable by up to a year in jail for a first offense, two years for a second or subsequent offense, and up to life in prison for convicted felons.  The bill would also specifically authorize law enforcement to arrest and prosecute anyone anywhere in the state for this crime.  This bill has the backing of the Senate President, Lt. Gov. Dan Patrick (R), who said that the bill would empower Texas “to truly protect our border, as the Federal Government has completely abdicated its constitutional responsibility.”  The bill has been referred to the Senate Committee on Border Security but has not yet been set for hearing.

Both bills would also make trespassing on private property by illegal aliens a felony.  

These bills appear expressly designed to test the constitutional limits of state authority regarding immigration law and the extent of federal preemption, which was last addressed by the U.S. Supreme Court in Arizona v. United States in 2012. In that case, the Supreme Court struck down much of Arizona’s anti-sanctuary law, SB 1070.  Texas Attorney General (AG) Ken Paxton has specifically called for legislation that would do what has been previously struck down by the Supreme Court.  His office has stated that it “does not agree with the ruling [in that case] and would “welcome laws” that would spark a court challenge “because the makeup of the Supreme Court has changed.”

If these bills or something comparable passed both chambers and reached his desk, Gov. Abbott would almost certainly sign them.

The Texas Legislature is currently scheduled to adjourn on May 29.