Gov. Greg Abbott on Monday is expected to sign into law a measure allowing Texas law enforcement officials to arrest migrants who enter the state from Mexico without legal authorization, setting the stage for a potential showdown with the federal government over immigration enforcement powers.
Mr. Abbott pushed for the legislation, which passed in a special session of the Republican-dominated State Legislature last month over the strong objections of Democrats, immigrant rights groups and Hispanic organizations who argued that the measure violated the U.S. Constitution and would encourage racial profiling.
Some border sheriffs have also opposed the legislation, expressing concern that it could rapidly overwhelm the local jails and courts if even a fraction of those who come over the border every day were arrested. In just one section of the 1,254-mile Texas border with Mexico, around the cities of Eagle Pass and Del Rio, federal agents encountered 38,000 migrants in October.
The surge of migrants has become a political liability for President Biden, who has been criticized by Republicans and some Democrats for the record number of arrivals at the southern border under his watch.
In signing the law, Mr. Abbott, a third-term Republican, would take his most direct step yet in challenging the Biden administration over federal immigration policy, which is currently being negotiated between the president and Congress.
The Texas law would take effect in March and very likely wind through the courts in subsequent months, just as presidential and congressional campaigns intensify. Legal experts have said the legislation could create the opportunity for the U.S. Supreme Court to revisit a 2012 case, Arizona v. United States, that was narrowly decided in favor of the power of the federal government to set immigration policy.
Over the last two years, Mr. Abbott has steadily escalated a multibillion-dollar program of state-level border enforcement, known as Operation Lone Star, deploying thousands of National Guard troops and state police on a mission to indefinitely patrol the border.
Under the program, the state police have arrested thousands of migrants on misdemeanor charges of trespassing. But those arrests could be conducted only on private land, and with the consent of the landowner. And the effort has not deterred illegal crossings, which have continued at high levels.
The new law makes it a misdemeanor to cross into Texas from Mexico anywhere other than through the legal ports of entry. It also would allow, during the court process, for migrants to be ordered to return to Mexico or face prosecution if they don’t agree to go. A second violation would be a felony.
Crossing between ports of entry is already a crime under federal law. But federal agents often do not prosecute migrants until their second offense, admitting many of those who cross for the first time into the country, especially women and children.
As a result, Mr. Abbott and other Texas Republicans argue that the federal law is not being enforced as they believe it should be. The state’s new law would not allow migrants who claim asylum to avoid arrest or prosecution unless their asylum claim has already been granted, a process that can take years.
Mr. Abbott has said that the new state law is needed to allow Texas to do more to reduce the number of people crossing into the state illegally. He has taken other steps to draw attention to the border surge, including installing razor wire along the Rio Grande and busing tens of thousands of migrants from Texas border towns to Democratic-run cities like New York, Washington, Los Angeles and Chicago.
On Monday, federal immigration officials closed international rail bridges in Eagle Pass and El Paso so border agents could be redeployed to handle the large number of arriving migrants there.
Opponents have vowed to file suit to stop the law from taking effect.
“It’s very much our view that Texas has no authority to police and prosecute immigration crimes,” said David Donatti, a senior staff attorney at the American Civil Liberties Union of Texas. “We will go to federal court to make it so they are never able to do so.”
The governor was also expected on Monday to sign into law about $1.5 billion in additional funding for the state’s construction of a border barrier.
Legislators did not provide funding to support additional arrests or prosecutions of migrants, or estimate the associated costs. To process the trespassing arrests under Operation Lone Star, Texas has already built dedicated processing areas and reserved space in state prisons to act as jails for migrants held on the trespassing charges.
Ryan Urrutia, the patrol commander for the El Paso County Sheriff’s Office, said the sheriff did not support the legislation, fearing that it would sow distrust of law enforcement in the mostly Hispanic community. Mr. Urrutia said the office had projected that it could add about $6 million in annual costs for El Paso County, though he cautioned, “Nobody knows.”
Local or state police officers — such as sheriffs, Texas Rangers or city police officers — could make an arrest under the law for up to two years after the alleged offense. That raises the question of how police officers far from the border could determine whether someone crossed illegally without asking for immigration documents, a tactic that critics fear could lead to racial profiling.
Representative David Spiller, the Texas Republican who carried the bill in the State House, said the new law would not result in those kinds of inquiries. “I think most of the enforcement is going to be on the border, where officers see people coming across,” Mr. Spiller said in an interview on the “Y’All-itics” podcast. He added that he believed the legislation was “not in conflict” with the 2012 Supreme Court case.
But before the bill passed with Republican majority support, one Republican senator warned that the legislation would, in fact, conflict with the Constitution, which he said gave the federal government authority over immigration enforcement.
“We are setting a terrible precedent by invalidating our obedience and faithfulness to our Constitution,” the senator, Brian Birdwell, a conservative Republican from south of Dallas, said in a speech on the floor of the State Senate. “President Biden’s failure to obey his oath does not compel us to violate ours.”