Legislation coming out of Texas is expected to fuel an epic constitutional battle that could land at the Supreme Court, as states and cities across America are starting to take immigration issues into their own hands in the absence of federal border enforcement. 

House Bill 4 is now heading to Texas’s senate after the state house approved it last week following heated debate. The measure, which would allow all state police agents to deport illegal immigrants, is one of several bills, including legislation on border security and public education, for which Governor Abbott called a special legislative session earlier this month.

The Texas legislation is reigniting clashes over the bounds of a state’s sovereignty to handle issues that are considered federal, as a rapidly increasing number of voters say immigration is their top issue heading into next year’s presidential election. 

The legislation comes as an increasingly bipartisan effort is being made across the country to address the migrant crisis that has long overwhelmed southern border towns — and recently is crushing northern and Midwestern so-called sanctuary cities — as The New York Sun has reported. 

“I think the point of this piece of legislation is to set up a battle at the U.S. Supreme Court,” an incoming director at the Texas Immigration Law Council, Kristin Etter, said in a panel hosted by the Texas Tribune Monday.

The Supreme Court’s 2012 decision in Arizona v. United States ruled that it was unconstitutional for states to arrest and deport illegal immigrants, as deportation was deemed to be within the federal government’s purview. 

The Arizona decision has tied Mr. Abbott’s hands, making it impossible to address urgent border issues, a former acting commissioner of U.S. Customs and Border Protection, Mark Morgan, tells the Sun.

Despite Mr. Abbott’s success from a law enforcement stance since starting Operation Lone Star in March 2021, Mr. Morgan adds, Texas hasn’t been able to legally take action on the border protection front, which this legislation would help remedy. 

“They’ve apprehended over 400,000 illegal aliens that would have all been ‘got-aways’ had it not been for Operation Lone Star, they’ve seized thousands of pounds of drugs, including enough fentanyl not just to kill every Texan, but to kill every American in this country, they seize thousands of weapons, millions of dollars of U.S. currency,” Mr. Morgan says. 

Yet in the time Operation Lone Star has been up and running, he adds, the border has gotten much worse. 

“Why is that? Because states are not allowed to enforce immigration law. U.S. v. Arizona made that very clear,” Mr. Morgan says. “So what does that mean for the states? Well, it means that Governor Abbott can’t do the one thing that he needs to do.” 

The Biden administration’s catch-and-release policy is incentivizing people to come to America because they know they’ll be released, he notes. The legislation could give Mr. Abbott “the state authority, state law, to do exactly what he needs to do,” Mr. Morgan says. “And that’s to detain and remove those that illegally enter into the state of Texas.”

“Article 4, Section 4 of the Constitution says it is solely the government’s responsibility to protect the states from threats outside its borders,” Mr. Morgan says. 

Yet, if the federal government fails in that duty, “then the states can avail themselves of the constitutional self-help remedy under Article One, Section 10, which states if the country has actually been invaded, they then can take whatever action necessary to defend themselves,” he adds. 

Mr. Abbott has already declared that Texas has been invaded, which could give him constitutional leverage if — and likely when — the legislation goes to court. Texas has “not just been invaded by people,” Mr. Morgan says. “It’s been invaded by people, drugs, criminals and potential national security threats.” 

Yet others, like Ms. Etter, say the chances of Texas’s legislation holding up in court are “very slim.” 

“This piece of legislation is one of the most dangerous and unconstitutional pieces of legislation I think in Texas that’s been ever proposed,” Ms. Etter adds. “That’s because it literally gives a license to every peace officer in Texas with the ability to round up and arrest or remove from the country any immigrant that they want.”

The bill makes it a crime to enter Texas at a place other than a port of entry, which can’t be enforced unless it’s observed visually, she says. 

“So what happens is that immigrants all over the state are going to be subject to consensual encounters. Officers can just roll up to a job site and just ask, ‘Hey did you enter through a port of entry?’” she says. If they answer no, they can be arrested and sent to a foreign nation, Ms. Etter says of the legislation. 

The measure is likely to be challenged in court, and it would take away immigrants’ rights to due process, Ms. Etter says. 

“We’re going to be looking at a situation where anybody and everybody is going to be subject to these ‘show me your papers’ stops,” she notes, adding that it would cause many immigrants “to be legitimately fearful for their safety and their security.”

Yet, as southern border apprehensions reach an all-time high and an estimated 1.6 million “known-got-away” migrants are spreading throughout the country, many are demanding action from the federal government or from states in Congress’s absence.  

Mr. Abbott will continue using “every tool and strategy” to secure the border “and fill the dangerous gaps created by President Biden’s open border policies,” the governor’s press secretary, Andrew Mahaleris, tells the Sun. 

“President Biden refuses to uphold our nation’s immigration laws and secure the border, allowing record-high levels of illegal immigrants, deadly drugs like fentanyl, and weapons to surge into our state and country,” Mr. Mahaleris says. 

“Under our historic border mission, Texas has allocated more than $9 billion of Texas taxpayer money for border security, deploying thousands of Texas National Guard soldiers and DPS troopers, busing migrants to self-declared sanctuary cities, installing strategic barriers, and building our own border wall,” he adds.