Texas’ Latest Immigration Legislation: Increased Policing, Decreased Accountability

Texas Gov. Greg Abbott signed a sweeping immigration enforcement bill into law yesterday, making illegal immigration a state crime and allowing local judges to issue deportation orders. Once Senate Bill 4 takes effect, Texas law enforcement will be authorized to stop, arrest, and jail migrants—a power that could lead to racial profiling and a costly expansion of policing.

S.B. 4 makes it a state crime, ranging from a misdemeanor to a felony, for an undocumented person to enter Texas outside an official port of entry. Law enforcement will be permitted to arrest people they think entered the state illegally, and not just in the border region. S.B. 4 will let Texas law enforcement “arrest undocumented immigrants anywhere in the state,” reported The Texas Tribune. The law is set to take effect on March 5, 2024.

There will no doubt be cut-and-dry arrests, such as cases where an officer sees someone physically crossing the border in an unauthorized area and discovers that the person is undocumented. But S.B. 4 allows enforcement in a much more ambiguous zone: How can officers, by sight alone, identify a person who entered the state illegally but now lives in Dallas? The potential for racial profiling is clear.

“It’d be very difficult to say that this is racial profiling—it’s not,” countered state Rep. David Spiller (R–Jacksboro), who sponsored the bill in the Texas House, in a November 29 episode of the Y’all-itics podcast, as USA Today reported this week. “It’s whether someone has met the elements of this offense.”

Spiller argued that “95 percent of [enforcement] would be within 50 miles of the border,” but “there could be circumstances where law enforcement officers would know” that someone encountered far from the border would qualify for prosecution. “We don’t want to necessarily limit it, we don’t want to tie law enforcement’s hands, and so that’s why it’s a statewide law,” he continued.

But that’s exactly what would allow law enforcement to stop and detain Texas residents based on potentially flimsy evidence, leaving the door open for harmful interactions with police well beyond the border. And some language in the law could make it even more difficult for Texans whose rights have been violated to seek redress.

Specifically written into the text of S.B. 4 is language that will help shield officials from liability. “The law provides civil immunity and indemnification for local and state government officials, employees, and contractors for lawsuits resulting from the enforcement of these provisions,” noted a press release from Abbott’s office.

Texas has a track record of controversial immigration enforcement tactics under Abbott. Among them is Operation Lone Star, a border-securing mission that imposed a trespassing charge on migrants crossing into the state on private property. But many immigrants had those charges “dismissed or rejected,” found a 2022 ProPublica report. “Prosecutors and judges deemed certain arrests questionable after some immigrants said [Department of Public Safety] troopers marched them through private property.” As of July, Operation Lone Star has cost Texas taxpayers over $4.5 billion, to questionable effect.

S.B. 4 is perhaps the most drastic immigration enforcement law since Arizona’s S.B. 1070, passed in 2010. It required police to investigate people’s immigration status and made it a state crime to be in the country illegally, among other things. Courts eventually struck down key parts of S.B. 1070, with the Supreme Court ruling in 2012 that certain measures were preempted by federal law.

S.B. 4 is already facing legal challenges of its own. El Paso County and two immigrant rights groups sued Texas over the law today, as did the American Civil Liberties Union. A group of congressional Democrats has urged the Justice Department to intervene.

The Biden administration’s approach to the border is deeply flawed. There are many policies it—or Congress—could adopt to help make migration flows more predictable and manageable while respecting the rights of newcomers and settled immigrants. S.B. 4 doesn’t do any of that. Instead, it’ll put Texans at risk of rights violations and strain relationships between local communities and law enforcement, relying on the same hardline tactics that have been proven ineffective again and again.