Abbott challenges the FBI by ordering Texas soldiers and troopers to bring migrants back to the border

Texas Gov. Greg Abbott on Thursday ordered state National Guard soldiers and law enforcement officials to detain and deport migrants suspected of illegally returning to the U.S.-Mexico border to test how far his state is at the attempt to enforce immigration law – a federal responsibility.

The order comes days after a group of right-wing Texas officials — along with some former Trump administration leaders and U.S. Rep. Chip Roy (R-Tex.) — asked the Republican governor to focus on the state and U.S. constitutions to be summoned to declare an “invasion” on the southwestern border and to use his forces to repel it. Leaders in sparsely populated counties near the border with Mexico complain that they are being overwhelmed by smuggling attempts, and growing numbers of migrants are evading detection.

The order appears unconstitutional, legal experts said, and is unlikely to have practical implications for Abbott’s ongoing, costly and controversial Operation Lone Star border security initiative. But it represents an escalation for the governor, who is running for re-election and seeking national office, in a broader drama rife with anti-immigrant rhetoric and legally dubious measures aimed at challenging the federal government’s exclusive powers over enforcing immigration laws – possibly a US Supreme Court with a conservative majority until the end.

“I think it’s pretty clear given the current precedent that this is the kind of decision that the federal government needs to make,” said Steve Vladeck, a professor at the University of Texas School of Law. “But I also think that the most relevant Supreme Court precedent may very well be the target of this policy.”

In 2012, the Supreme Court ruled on a number of immigration-related laws, including Act SB 1070, or “Show Me Your Papers,” passed by the Arizona legislature, affirming that states cannot enforce their own immigration legislation.

“I can’t think of any legal argument that would allow the governor of Texas to engage in unilateral immigration enforcement,” said Denise Gilman, director of the immigration clinic at the University of Texas at Austin. “We don’t want every state enforcing its own immigration laws.”

Carry migrants, stop trade: Abbott bets future on divisive border plans

But Texas has poured billions into its crackdown on the border, including by diverting federal funds for coronavirus relief, deploying thousands of National Guard troops and directing Department of Public Safety officials to stop migrants in south Texas patrol and arrest. With each new step, Abbott seeks to blur the lines between federal and state agencies. The state has bused migrants into Washington, halted commercial traffic on international bridges over unnecessary inspections critics have called unnecessary, challenged the Biden administration in court, and emptied state jails to hold migrants. Money is also being raised to build a border barrier.

Civil rights groups have asked the Justice Department to investigate Operation Lone Star for possible civil rights violations. The Texas Tribune reported this week that federal officials have opened an investigation into Abbott’s program, but Justice Department officials have not responded to questions about the scope of their investigation. However, a state regulator is reviewing Abbott’s reallocation of about $1 billion in aid money to fund the initiative.

“This is all for show,” said Claudia Muñoz, whose Texas-based group Grassroots Leadership runs a hotline for migrants arrested by state officials for trespassing. “But it’s also more than symbolic because he has money behind it. Texas is testing the different ways they can take control of the immigration system, and the federal government is letting them get away with it.”

The governor has repeatedly accused the Biden administration of encouraging growing numbers of immigrants to take risks and put their lives in the hands of smugglers to get to Texas and the United States. He pursued the president after San Antonio police officers found dozens of dead and dying migrants abandoned in a sweltering semi-truck last month.

“While President Biden refuses to do his job and enforce the immigration laws passed by Congress, the state of Texas is once again stepping up its stride and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a statement. “As border challenges continue to mount, Texas will continue to take action to address challenges created by the Biden administration.”

But the Biden administration — compelled by court order — has largely maintained border policies put in place during his predecessor’s tenure, including a public health order expelling most frontier workers and the migrant protection protocols, or Return to Mexico program. The Supreme Court last month gave the Department of Homeland Security permission to end the policy. White House officials and Democrats have called Abbott a hypocrite for failing to similarly criticize Trump.

The wording of Thursday’s executive order is vague on what “returning migrants to the border” means for soldiers and soldiers who arrest them. As part of the current operation, individuals caught on private land are arrested and transferred to a state prison. Advocates say more than 3,000 migrants have been detained without formal charges, access to lawyers or the right to a speedy trial. Many were later handed over to federal authorities for deportation or expulsion.

The state of Texas has no deportation authority. Abbott spokeswoman Renae Eze stated that “illegal immigrants are being returned/transported back to the border [ports of entry].”

“This is discriminatory and a violation of civil rights,” said Laura Peña, legal director of the Texas Civil Rights Project’s Beyond Borders program. “This is just a further escalation of what is an underlying drumbeat of racism and xenophobia that Abbott has been stoking and which can have deadly consequences.”

But at least one Texas jurisdiction has already begun to take matters into its own hands. Kinney County, a rural ranching community in south Texas on the Rio Grande, was one of the first local governments to declare a state of emergency over the “border crisis,” and has become the focus of a far-right campaign to urge the state for more border security, an offensive statement. The expansion of the district’s campaign has drawn attention from the conservative media.

This week, the county’s top elected official, Tully Shahan, brought together a group of rural Texas sheriffs, elected leader, Roy, and former Trump administration officials Mark Morgan and Ken Cuccinelli to declare that their communities are “waging war” and that Biden is “destroying Western civilization.” The county is also embroiled in a federal legal battle over policy priorities and policies for U.S. Immigration and Customs Enforcement, which allegedly violate the agents’ ability to enforce the law, Represented by Kris Kobach, a former Secretary of State for Kansas known for his tough stance on illegal immigration.

Kinney County Sheriff Brad Coe initially told conservative media last month he deported four migrants after US Border Patrol agents failed to take them into custody. He later changed his account and explained that people were involved in a smuggling incident that ended in a crash. Coe, a retired Border Patrol agent, said he didn’t have a safe place for them in the county jail, so he loaded the migrants into his truck and drove to the Eagle Pass, Texas, port of entry and dropped them off.

“Coe took them to the bridge and they went over to Mexico and he’s going to do it again,” Matt Benacci said. the spokesman for the sheriff’s department. “The Border Patrol didn’t want to take her, so they made the best decision they could to keep her in safe circumstances.”

Attorney Kathryn Dyer, who unsuccessfully sued Coe for despising his migrant detention, said the county was a willing broker of Abbott’s agenda. But she said the danger comes when other jurisdictions take notice and replicate it.

“Kinney has taken that leadership role,” she said. “We are already seeing this blueprint and the formulation of these issues being pushed in other states. If you have a state that ignores the line between federal and state jurisdiction, we all risk ignoring the law going forward.”

While Abbott’s move was welcomed by hard-liners on the right, the governor didn’t do what the small group of Texas sheriffs and elected leaders demanded: declare an invasion.

“We recognize Governor Abbott’s recognition that the facts on the ground along the border are consistent with the understanding of the constitution of an invasion,” Cuccinelli, a Homeland Security official under President Donald Trump, said in a joint statement with Russ Vought, the president the conservative Center for American Renewal. But they said Abbott’s move doesn’t go far enough, amounting to little more than “catch and release.” Abbott challenges the FBI by ordering Texas soldiers and troopers to bring migrants back to the border

James Brien

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