AUSTIN — Last Thursday, Federal Judge David Ezra struck down SB 4, a controversial law that gives the state of Texas the power to make arrests and prosecute individuals accused of immigration-related offenses. The state swiftly filed an appeal, and on Saturday afternoon, the U.S. Fifth Circuit Court of Appeals issued a week-long stay; U.S. Supreme Court Justice Samuel Alito extended the stay until Wednesday, March 13.
SB 4 was signed into law by Gov. Greg Abbott in December, and it was originally set to take effect on Tuesday. The bill was a partisan flashpoint and passed both chambers of the Legislature without a single Democratic vote. “We will not back down in our fight to protect our state — and our nation — from President Biden’s border crisis,” Abbott’s office wrote in a press release last Thursday.
Abbott’s comments cut to the heart of the controversy over SB 4, which divides the state and federal government over two very different interpretations of the Constitution. The Department of Justice argues that the law usurps the government’s power to enforce immigration law, but the state insists that the Biden administration has failed to enforce these laws, resulting in an “invasion” that the Constitution allows states to combat “without the consent of Congress.”
During oral arguments, Ezra expressed sympathy for the state of Texas, which has seen a large jump in migrant apprehensions since the pandemic — but ultimately sided with the federal government, writing that the law is “antithetical to the Constitution” and “conflicts with key provisions of federal immigration law, to the detriment of the United States’ foreign relations and treaty obligations.”
Like clockwork, the law triggered a negative response from the Mexican government almost immediately after it was passed. “Mexico also expresses its concern regarding the package of legislative measures that will affect the human rights of the more than 10 million people of Mexican origin residing in Texas, by fostering hostile environments that may lead to hate acts or crimes against migrant communities,” the Office of the Secretaría de Relaciones Exteriores (Secretary of Foreign Relations) wrote in a press release.
While many of the nonprofits who oppose the law — including the Border Network for Human Rights, which has an office in Presidio — share Mexico’s fear that the law will encourage racial profiling, the state has insisted that the migrant “invasion” puts the lives of everyone living or passing through the borderlands at risk.
On behalf of the Texas Department of Public Safety, Regional Director Victor Escalon stressed that the dangers posed by the “failed narcostate” of Mexico required Texas authorities to work directly with the Mexican police on the front lines of fighting cartel violence in an attempt to save lives on both sides of the border.
Opponents of the law also worry about its practical implications — counties across Texas are concerned that the law could cut into their bottom line. Counties are paid to host federal prisoners in their jails, but have to foot the bill for those accused of state-level infractions. Per court documents, DPS estimated that their agency alone would arrest around 88,000 people per year under SB 4.
El Paso County joined the suit on the grounds that hosting federal prisoners is its third-largest source of income and that SB 4 would significantly cut down on jail revenue; Harris County filed a brief in support. “This enormous influx of SB 4 inmates in Texas will cause the price of outsourcing jail operations and other jail-related costs to rise substantially,” the filing reads. “This will cause harm to Harris County by forcing it to increase its budget for jail-related costs by hundreds of thousands, if not millions of dollars each year, reducing the services it can provide its residents.”
Brewster County Sheriff Ronny Dodson has long been critical of adding state penalties for immigration crimes for the same reason — in 2022, after state human smuggling charges were enhanced, he tried to skirt around the issue by applying for funding from Abbott’s Operation Lone Star to double the size of the county jail. The funding was never granted. “We’re getting hammered,” he told The Big Bend Sentinel.
Elsewhere in the Big Bend, reactions to the state’s attempts to combat rising numbers of migrant apprehensions fall along party lines. Around the same time that Dodson applied for jail funding, then-Presidio County Judge Cinderela Guevara, a Republican, declared a state of emergency in response to the “invasion” at the border. Her predecessor, Democrat Joe Portillo, struck the word “invasion” from the declaration and later declined to renew it.
The region’s two state legislators, Sen. Cesár Blanco and Rep. Eddie Morales — both Democrats — spoke out against the bill. “Senate Bill 4 circumvents federal immigration and asylum regulations, will cost our communities millions of dollars, and does nothing to solve the humanitarian crisis happening at our border,” Blanco wrote in a press release. “I will continue calling on Congress to pass comprehensive immigration reform and stand against legislation that criminalizes and dehumanizes families looking for a better life.”
As the countdown continues, all eyes are on Washington. Some have speculated that the three conservative Trump appointees to the U.S. Supreme Court could tip the case in Texas’s favor — Alito, a Bush appointee, extended the stay, with an order for Texas to respond by March 11.
Gov. Abbott remains steadfast. “We will use every tool and strategy to secure our border until President Biden fulfills his constitutional duty to enforce federal immigration laws already on the books,” he tweeted on Monday.