The state's prosecutor now sees the possibility of overturning the Arizona v. United States case and for Texas to take control of the immigration crisis in its own territory.

During the fiscal year ending in September 2022, U.S. border officials intercepted 2.4 million immigrants attempting to cross our country's southern border. A record number that highlights the chaos and confusion created by an administration that had promised since its arrival at the White House, loudspeaker in hand, fair and humanitarian treatment for the millions of immigrants trying to enter our country en masse. Empty promises that did nothing but encourage illegal immigration and human trafficking while the government was obligated to enforce Title 42 and return hundreds of thousands of immigrants to their countries due to the Covid-19 health situation.

In response, Texas Governor Greg Abbott launched Operation Lone Star, which deployed state police and National Guard members to the border to repel and arrest immigrants crossing into the U.S. without entry permits. Texas also began construction of a state-funded border wall and approved the immediate return of immigrants intercepted within the state back to ports of entry so that they could be processed by immigration authorities. Finally, it even ventured to send many of the admitted immigrants to other states and sanctuary cities.

To date, the state has spent more than $4 billion to reduce illegal immigration, although arguably without success over the past two years. Therefore, several state legislators understand that it is time to go a step further and propose to stop this flow of people, which they call an "invasion", with several bills that put the responsibility and power of the state of Texas over Border Control in the presence of a federal government that is the sole enforcer of U.S. immigration and citizenship law.

There are several bills, such as the one presented by Matt Schaefer, Tyler representative and member of the Texas House Freedom Caucus who, in 2017, had already introduced an amendment to a bill aimed at banning so-called sanctuary cities within the state and also allowed police to inquire about immigration status during a police stop. That bill, which left legislature relations divided, would eventually pass and go into effect after it was signed by Governor Greg Abbott.

Now the same representative's bill (HB 20) includes the creation of roving police units composed, in part, of "law-abiding citizens," which increases the possibility of armed citizens confronting immigrants at the border. Such 'Border Protection Units', would be overseen by a chief appointed by the governor, and could "arrest, detain and deter" potential asylum seekers entering the US. without documentation. This is a bill that would undoubtedly test the state's limits in enforcing immigration law, something that U.S. courts and case law have historically ruled is the exclusive domain of the federal government.

Trespassing: a felony

Similarly, Schaefer's legislation would also make trespassing on private property in Texas by immigrants entering from Mexico a felony. The bill also provides for a $10,000 fine for those caught illegally crossing into the country and would elevate the act of entry without a permit or documents from a misdemeanor, as it currently is under federal law, to a third-degree felony.

He further adds that if the federal government ever declares another national public health emergency due to Covid-19, or if the state were to require any immunization against it for any U.S. citizen, including government and health care workers, then the state could remove the illegal immigrants "as quickly as possible."

Critics have been quick to point out that these new Texas 'Border Protection Units' would be in direct conflict with Border Patrol agents and Immigration and Customs Enforcement officers. There is also a question of how the state of Texas would work together with Mexico, which would have to agree to people being returned by state officials. Currently, under federal immigration policy, if a person is not a Mexican citizen, Mexico negotiates directly with the U.S. government to determine how many it will accept and whether the country is willing to receive non-Mexican citizens.

Another bill has been introduced in the state House of Representatives (HB 7), led by Rep. Ryan Guillen, R-Rio Grande City, which includes the creation of a judicial system parallel to the federal immigration system to try immigrants and human traffickers detained by state patrols. The proposal establishes and supports raising a combination of public and private funds to finance the court and continue construction of a wall along the Texas-Mexico border.

Life imprisonment for repeat offenders

Finally, in a sign that the state's upper chamber is also willing to do all it can to stop illegal immigration, Lieutenant Governor Dan Patrick, who oversees the Senate, announced that he would support legislation making it a state crime for people to enter Texas illegally. Senate Bill 2424, sponsored by Sen. Brian Birdwell, R-Granbury states that in addition, any person who attempts to enter the country a second time would be imprisoned for one to two years and would even punish a repeat attempt at immigration with life imprisonment if the person had been previously convicted of a felony.

Among the most obvious challenges that can be anticipated are lawsuits filed by self-styled civil rights groups that want to uphold the applicable case law, dating back to 2012, in the case of Arizona v. United States. Arizona also passed a state law in 2010 that allowed police officers to arrest people if they could not provide documentation proving their lawful presence in the country, to which the Obama Administration responded by suing the state, and claiming that immigration laws could only be enforced by the federal government. In 2012, the U.S. Supreme Court ruled in a 5-3 decision that the local police did not have the authority to arrest someone based solely on their immigration status.

What is clear is that Texas state Republican leaders are poised to challenge this decision. In fact, at a border security committee hearing last month, Texas Attorney General Ken Paxton said he would like to see cases that "test" Arizona vs. United States. Bills such as HB 7 and HB 20 would be viewed as ideal test cases if challenged in court, as expected. "We have a different court," Paxton told state lawmakers, referring to the Supreme Court's 6-3 conservative majority solidified by three appointments under President Donald Trump. "We have the best chance we've ever had to overturn (Arizona v. United States) and give the state the ability to protect its citizens."