Justice Department Sues Texas to Halt SB 4

FAIR Take | January 2024

Last week, the Department of Justice (DOJ) sued the State of Texas, Governor Greg Abbott, the Texas Department of Public Safety (DPS) and Director of DPS Steven McCraw to halt Texas’s recently enacted law, SB 4, which created a state crime of illegal immigration. The lawsuit filed in the Western District of Texas asks the court to find that SB 4 violates the Constitution’s Supremacy Clause.  It also seeks an injunction to keep SB 4 from being enforced when it goes into effect on March 5.

In its brief, the DOJ’s primary argument is that the federal government has “exclusive authority under federal law to regulate the entry and removal of noncitizens.” However, by adopting SB 4, the DOJ argues that Texas is (unlawfully) attempting to run its own immigration system.  In particular, the DOJ argues that federal statutes delineate how states may assist in enforcing federal immigration laws. But if SB 4 were to be enforced, Texas could prosecute individuals for violating federal laws even when the federal government doesn’t want to prosecute such crimes. Further, DOJ contends that, if SB 4 were implemented, noncitizens who are eligible to have their deportations stayed or otherwise deferred under federal law may be subject to removal under Texas law and, in this way, Texas is undertaking its own scheme without adhering to the statutes enacted by Congress.

Secondly, the DOJ claims that SB 4 would impede the federal government’s ability to take “appropriate enforcement actions.” For example, the DOJ argues that if a noncitizen exits a port of entry without a formal removal under federal law and later reenters the country, the federal government may not be empowered to prosecute the noncitizen for illegal reentry. By allowing state officials to police unlawful entry and to remove noncitizens, the DOJ contends SB 4 interferes with the federal government’s authority to enforce the entry and removal provisions of federal law.

Finally, DOJ asserts that SB 4 interferes with U.S. foreign relations. “The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with the Nation’s foreign policy.” SB 4 could impair the U.S.’s relationship with Mexico, according to the DOJ, because the state law “permits state judges and magistrates to order the removal of noncitizens to Mexico, regardless of their country’s citizenship and without any indication that Mexico is willing to accept them.”

DOJ’s brief also highlights how SB 4 appears to be a direct challenge to the U.S. Supreme Court’s ruling in Arizona v United States (Arizona SB 1070), which upheld the federal government’s complete authority over immigration enforcement. Many of the arguments currently presented by the DOJ were directly based on Justice Kennedy’s opinion.  In that decision, the Supreme Court held that where Congress occupies an entire field, even a complementary state regulation is impermissible. Additionally, the Court found that the Executive Branch has unfettered discretion to not enforce U.S. immigration law.

Texas will soon need to formally file a response to the DOJ’s complaint in court.  According to Governor Abbott, the Texas law differs from Arizona and that’s why it will avoid the preemption allegation made by the federal government. Based on his comments Texas will argue that enacting SB 4 is allowed under the U.S. Constitution based on the Invasion Clause.  Article 1, Section 10 reads, “no state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, 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.”

On July 7, 2022, Governor Abbott issued an executive order declaring an invasion. In a letter to President Biden, Governor Abbott wrote, “Your inaction has led to catastrophic consequences. Under your watch, America is suffering the highest volume of illegal immigration in the history of our country.” Abbott continued, “[Y]ou and your Administration are in violation of Article IV, § 4 of the U.S. Constitution. Your sustained dereliction of duty compels Texas to invoke the powers reserved in Article I, § 10, Clause 3, which represents an acknowledgment of the States sovereign interest in protecting their borders.”

When Governor Abbott first learned about the federal government’s suit he said on X (formerly Twitter), “Biden sued me today because I signed a law making it illegal for an illegal immigrant to enter or attempt to enter Texas directly from a foreign nation. I like my chances. Texas is the only government in America trying to stop illegal immigration.  At a January 4 press conference in Eagle Pass, Speaker Mike Johnson (R-LA) bolstered Governor Abbott’s efforts saying, “Right here in Texas, Governor Abbott has heroically done more to enforce the law than the President has, and how has this administration responded? They have sued the state of Texas to stop their deterrence efforts.”

The DOJ lawsuit against Texas is actually the second legal challenge to SB 4. In December, the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project filed a lawsuit on behalf of Las Americas Immigrant Advocacy Center, American Gateways, and the County of El Paso, Texas, alleging that SB 4 “overrides bedrock constitutional principles and flouts federal immigration law while harming Texans, in particular Brown and Black communities.” Since both lawsuits were filed in the U.S. District Court for the Western District of Texas Austin Division, it is possible they will be considered together.

Under Biden’s watch, more than 8 million illegal aliens have been apprehended at our borders, and at least another 1.7 million “gotaways” have evaded Border Patrol. In FY23 alone, more than 3.2 million illegal aliens were encountered at our borders. That number represents a nearly fivefold increase from FY 2020, the last full year of the Trump Administration.