Why Allowing Texas Immigration Law Would Lead to ‘Total Chaos’

Silhouette of migrants lined up for processing in Texas.
A controversial Texas immigration law that would allow local and state law enforcement to stop, jail and prosecute migrants is being challenged by the Biden Administration.
AP Photo/Eric Gay, File

On March 19, the Supreme Court allowed a controversial new immigration law in Texas to go into effect.

A few hours later, however, the law — which would allow state and local law enforcement authorities to arrest and deport people who are in the state illegally — was blocked. Again

Complicated legal wranglings aside, a Northeastern University immigration law expert says it’s not a surprise that the law — Senate Bill 4 or SB 4 — has been repeatedly blocked, but rather that the law had been briefly allowed.

“The only thing that has been surprising so far about this case is the fact that for a brief moment, it seemed like it was going into effect,” says Rachel Rosenbloom, professor at Northeastern University School of Law. “That was surprising because it is, in the existing case law, a very, very clear-cut issue.”

Headshot of Rachel Rosenbloom.
Rachel Rosenbloom, Northeastern professor of law, says allowing Texas’ SB 4 law would result in “total chaos.” Photo by Alyssa Stone/Northeastern University

“States just can’t do this,” Rosenbloom continued. “They can’t go out on their own and usurp the federal government’s power over immigration.”

SB 4 was passed by the Texas legislature last year and criminalizes unauthorized migration at the state level — making the act of entering the U.S. outside of a port of entry (which is already a federal offense) into a state crime. The law also creates a state felony charge for illegal reentry.

The law empowers Texas law enforcement officials to stop, jail and prosecute migrants on illegal entry and reentry charges. It also allows Texas judges to order migrants to return to Mexico as an alternative to continuing their prosecution.

The Justice Department has said SB 4 conflicts with federal law and the Constitution, as immigration enforcement has long been a federal responsibility. The department has also argued the measure harms relations with Mexico, which has called SB 4 “anti-immigrant” and vowed to reject migrants returned by the state of Texas.

Rosenbloom says that existing case law supports the federal government’s position. 

“This is a pretty open-and-shut case,” Rosenbloom says. “It’s unwise to make predictions, but certainly if you went by the existing case law, there is no way that it would be permissible for a state to start enforcing immigration laws.”

Rosenbloom also notes that there are already federal offenses that deal with illegal entry and illegal reentry into the United States. 

“The federal government has control over who can come in, what their status is, anything to do with the border and with immigration, with deportation, with anything associated with immigration,” Rosenbloom says. “When there’s federal law and state law and they conflict, the federal law wins.”

Moreover, the Supreme Court has reinforced federal jurisdiction of immigration laws in ruling against Arizona’s “Show me your papers” law in 2012, Rosenbloom says.

To be sure, however, Rosenbloom notes that the current Supreme Court has upended precedent before; for example, in ruling against Roe v. Wade in 2022.

“We’ll see what happens,” Rosenbloom says. “You never know in this age we’re living through.” 

She says that allowing SB 4 would, however, unleash “total chaos.”

“If Texas is allowed to do this, there will be a lot of other states that try to follow in its wake and the result would be complete chaos,” Rosenbloom says. 

And Rosenbloom pushed back upon the notion that the border is “in a state of crisis that would justify an extreme measure such as SB 4” — as Texas has argued.

“There is a lot of language out there these days about the so-called crisis at the border,” Rosenbloom says. “Yes, there are large numbers of people arriving at the border these days. However, these are not unprecedented numbers. The United States has received large numbers of refugees before this, and they have gone on to become integral members of our communities.”

She adds that “many, many countries in the world are hosting far more refugees than we are proportionate to their population.” 

“The real crisis at the border is the fact that people’s access to official border crossing points has been blocked,” Rosenbloom continues. “What we’ve seen over the last few years — starting in the Trump administration — is a set of policies designed to keep people from being able to access the system. That is what is leading to asylum-seekers attempting to cross in far more dangerous places. That’s the chaos at the border right now that we are facing.”

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