On Nov. 16, Texas lawmakers passed legislation that will allow local authorities to arrest migrants who have illegally entered the United States through the southern border.
Under SB4, illegal aliens can be arrested, then provided with an interpreter and taken to appear before a judge or magistrate who will give them the option to return to Mexico or face a class B misdemeanor (which carries penalties of up to 180 days in jail and/or a maximum fine of $2,000).
The judge or magistrate can also order migrants who have entered the country illegally to be removed from the U.S.
Illegal aliens found guilty of illegally re-entering the U.S. after having already been convicted of the same offense could be charged with a felony and removed from the country.
State lawmakers say that while some have expressed concerns over duplication of federal law, SB4 does not conflict with federal law. Officials state returning migrants to Mexico would also be far less costly detaining them in the U.S. under current trespassing laws.
Gov. Greg Abbott is expected to sign the legislation, likely igniting a fierce constitutional battle that will wind its way through the courts.
The federal government does have the constitutional prerogative to control international borders and enforce immigration laws. However, public officials have stated that if the federal government balks on its obligation to defend U.S. borders, state governments have the constitutional authority to do so.
Former Arizona Attorney General Mark Brnovich drafted a 25-page legal opinion detailing this position. Former Deputy Secretary of Homeland Security Ken Cucinelli authored a separate policy brief providing a legal theory in defense of the same philosophy. Ultimately, a court will likely decide.
Since illegal entry is not currently a crime under state law, state law enforcement personnel can only arrest migrants for criminal trespass when permitted by landowners near the border.
Once SB4 is signed into law, police will be able to detain migrants without having to rely on cooperation from landowners.
Supporters of the legislation say it offers state officials a humane way to deter illegal migration at the Texas southern border.
Critics have blasted the measure as anti-immigrant and racist, suggesting it could lead to an increase in racial profiling.