The proposal, which has now cleared both houses of the Legislature, poses a direct challenge to the federal government’s authority over policing the borders.
In a direct challenge to federal power over immigration, the Texas House on Thursday approved the creation of a state-level crime for entering the country from Mexico between ports of entry, allowing local police agencies to arrest and jail unauthorized migrants or order them back to Mexico.
The legislation had been called for by Gov. Greg Abbott in what would be a sharp escalation of his multibillion-dollar border security program, known as Operation Lone Star. The Texas House also approved an additional $1.5 billion for the state to use to construct its own barriers near the international boundary.
The arrest measure now returns to the Senate, which has already approved its own version, and then head to Mr. Abbott’s desk for his signature.
“It is a humane, logical and efficient approach,” Representative David Spiller, a Republican from west of Fort Worth, said in introducing his arrest bill before the vote. “There is nothing unfair about ordering someone back from where they came if they arrived here illegally.”
Emotions ran high during hours of arguments and motions on the House floor that stretched through the night and into Thursday morning, with Democrats objecting to what they said would be a new criminal enforcement regime that could end up inadvertently targeting Hispanic Texans. At one point, tempers flared as Republicans moved to halt amendments to the bill.
“My community is being attacked,” one Latino representative, Armando Walle, a Houston Democrat, told his Republican colleagues. “Y’all don’t understand,” he said. “It hurts us personally.”
For more than two years, Mr. Abbott and Republican lawmakers have been testing the boundaries of the state’s power to enact its own aggressive law enforcement policies in response to the surging number of migrants crossing into the state from Mexico.
But the creation of a criminal offense under state law — empowering Texas officers to arrest migrants, including those seeking asylum — went a step further into a realm of immigration enforcement that is typically reserved to the federal government.
The legislative move is likely to set up a consequential court fight over immigration and, for opponents of President Biden’s immigration policies, create a chance to revisit a 2012 Supreme Court case, originating in Arizona, that was decided 5 to 3 in favor of the federal government’s primary role in setting immigration policy.
“The core question is whether the states can make it a crime to violate federal immigration law, and detain an alien for violating that law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston, who has written that Justice Anthony Kennedy, the author of the Arizona decision, left open the question of detentions.
Other legal experts saw the Supreme Court decision as clearly pre-empting state laws such as the one moving forward in Texas.
“What Texas is doing is taking up Arizona’s mantle,” said Daniel Morales, a professor of law at the University of Houston. “This is a complete relitigation of the issues that appeared and were settled in that case.”
While the federal government is responsible for the nation’s borders, border states have occasionally attempted to assert their own control, as Arizona did more than a decade ago, when faced with a large number of migrants in the state.
That state passed a law that, among other things, made it a state crime to be in the country without authorization and empowered police officers to arrest migrants believed to be deportable. The situation drew national attention, even before the legislation, in part because of a local sheriff, Joe Arpaio, who had been aggressively going after migrants in Maricopa County.
The Supreme Court struck down most of the Arizona law in 2012, finding that many of its main provisions, including those for state immigration crimes and arrests, either were pre-empted by federal law or conflicted with it.
The bill approved by the Texas House on Thursday appeared to go even further than the Arizona statute in authorizing local police officers to order migrants out of the country.
“It is unprecedented,” said Barbara Hines, the former director of the immigration clinic at the University of Texas Law School. She said she testified twice against the bill, telling lawmakers that it was unconstitutional.
“Texas can’t make Mexico take people that it has not agreed to take back,” said Gerald Neuman, a professor of law at Harvard University. He added that states are not recognized as having the power to order people to leave the country.
Still, state police officials in Texas have already discussed how they would use the new law to detain migrants caught crossing the Rio Grande, take them back to the international bridges and direct them to cross over into Mexico — or else be arrested and charged.
During a House committee hearing on the legislation, Steve McCraw, the director of the Texas Department of Public Safety, said that large new jail facilities would not be needed to deal with a huge number of arrests if most people agreed to go back over the border. The more migrants taken to the bridges who are “willing to voluntarily go over, the better,” Mr. McCraw said.
Some legislators raised concern that arresting migrants for the state offense could have the effect of separating children from their parents, as occurred during the Trump administration when federal border agents strictly enforced the federal law barring unauthorized entry. Mr. McCraw said his state troopers would not conduct such arrests.
“We don’t want to separate the mother from the child,” Mr. McCraw said during the committee hearing.
The legislation does not provide exceptions for those arriving between the ports of entry who intend to make asylum claims to the federal government, an option that is enshrined in federal law. That could invite other legal challenges, constitutional law experts said.
“The asylum issue is a tricky one,” Mr. Blackman said. “It’s a problem.”
It was not clear how the legislation would affect the existing coordination between Texas law enforcement officers and the U.S. Border Patrol. A large number of migrants who cross into Texas seek to immediately turn themselves in to federal border agents in order to make asylum claims.
Until recently, if state officers encountered them first, the officers usually alerted U.S. agents and handed them over for federal processing.
But in recent months, Texas National Guard members and state police officers have taken a more aggressive approach toward migrants attempting to cross the Rio Grande, laying down concertina wire along the riverbank and, in some cases, shouting at them to go back to Mexico.
And tensions have grown between state and federal officials over the state’s placement of buoys in the river and the concertina wire, which some federal border agents have cut in order to assist migrants struggling in the river. On Tuesday, the Texas attorney general, Ken Paxton, sued the Biden administration over agents’ cutting of the wire, saying the practice damaged Texas property and harmed the state’s effort to deter migrant arrivals.
The new legislation authorizing arrests promises to up the ante even further.
“It will raise new tensions,” said Aron Thorn, a senior attorney at the Texas Civil Rights Project.
The Texas House bill, known as H.B. 4, passed in the early hours of Thursday after Democrats repeatedly and unsuccessfully attempted to defeat or amend it.
While the legislation approved in the House differed in some details from a similar bill passed this month by the State Senate, both create the state-level offense, allowing for the arresting of migrants who cross between points of entry. A final version of the bill was expected to pass both chambers of the Legislature within a week.
Under the legislation, migrants believed to have crossed without authorization could be arrested even hundreds of miles from the border by local or state police officers.
“Not just D.P.S.,” Mr. Walle, the Houston lawmaker, said in a telephone interview before the debate, referring to the Texas Department of Public Safety. “Not just on the border. Now you’re going to tie up local law enforcement agencies all over the state.”
He added that “it puts fear into communities” that otherwise want to work with law enforcement.
State troopers have, since 2021, been arresting some migrants found on private land on charges of criminal trespassing as part of Operation Lone Star.
The arrests, which originally focused exclusively on men, have been challenged by immigration and civil rights groups. When the program started, the arrests overwhelmed local jails. The state has since dedicated space in certain state prisons to house migrants facing trespassing charges.
Many of those migrants have found themselves eventually deported, Mr. Thorn said, though some have spent months in jail after being arrested on the misdemeanor trespassing charges.
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