Texas Democrats in Congress say SB 4 is unconstitutional. Here's what they're doing about it

WASHINGTON — U.S. Rep. Joaquin Castro, D-San Antonio, is leading congressional Democrats in a push to block a Texas law that would usurp federal power over immigration — something Democrats say is unconstitutional.

Texas Senate Bill 4, which Gov. Greg Abbott signed into law Dec. 18, authorizes state police to arrest people suspected of illegally crossing into Texas from Mexico. The law creates a Class B misdemeanor for crossing the border between legal ports of entry, and it allows magistrate judges to drop the charge if the person suspected of illegally entering Texas agrees to return to Mexico.

U.S. Reps. Greg Casar and Lloyd Doggett, both Democrats from Austin, and all but one Texas Democrat as well as members of the Hispanic Caucus joined Castro in a Dec. 18 letter urging U.S. Attorney General Merrick Garland to intervene before Senate Bill 4 takes effect March 5.

“This bill is set to be the most extreme anti-immigrant state bill in the United States; it is clearly preempted by federal law and when it goes into effect will likely result in racial profiling, significant due process violations, and unlawful arrests of citizens, lawful permanent residents, and others,” the lawmakers wrote.

In short, said the Democrats, “SB 4 is an unlawful attempt to engage in federal immigration enforcement.”

Abbott argues that the border crisis from rising illegal immigration needs empowered state law enforcement and state judges to enforce what have been dubbed by opponents as “show me your papers” policies.

Tens of thousands of migrants have crossed the border in Texas in recent days, prompting U.S. Customs and Border Protection to shut down international rail crossings for five days in Eagle Pass and El Paso. Migrants have been riding atop freight trains in Mexico north to the U.S. border, and the rail closures slowed bilateral trade.

Abbott has defended SB 4 by saying Texas has had to step up in securing the border amid an overwhelming rise in illegal immigration under the Biden administration, which the governor says, has been inept in regulating immigration.

Democrats want Garland to head off the state law in court, possibly joining a lawsuit the ACLU of Texas filed Dec. 19.

“Asking local police to hunt down Texans who look like immigrants doesn’t make us more safe: in fact, it takes police away from investigating real crime,” Casar told the American-Statesman. “The federal government must block these unconstitutional anti-immigrant policies before they take effect.”

Casar’s spokesperson said that the Austin lawmaker has spoken with Garland about blocking SB 4.

Doggett, a former judge on the Texas Supreme Court, said: “SB 4 is unconstitutional, just as was previously placing buoys in the Rio Grande. Like his mentor, Donald Trump, with the phony claim of making Mexico pay for a wall, Gov. Abbott believes that stirring up anti-immigrant hysteria with a policy of cruelty represents a pathway to political success.”

Still, there wasn’t unanimity among Texas Democrats, with U.S. Rep. Henry Cuellar of Laredo, a conservative Democrat who represents a South Texas district and lives along the border, refusing to sign the letter. He was the only congressman from the 13 Democratic Texans who did not sign.

“I did not sign the letter because the language was too strong and seemed anti-law enforcement,” Cuellar told the Statesman. Nonetheless, he does not support the new state law.

“I have concerns about SB 4," he said. "The state law should be challenged because of the supremacy clause and the U.S. Supreme Court precedent in the Arizona case.”

The U.S. Constitution's supremacy clause states that federal laws, rules and regulations trump conflicting state laws, as was upheld in a 2010 Supreme Court case on illegal immigration in Arizona.

Will the Democratic Biden administration strike back?

“They did it in Arizona,” said Cornell Law School immigration professor Stephen Yale-Loehr, referring to the 2010 Supreme Court case where the Obama administration challenged an Arizona law similar to Texas' SB 4.

“It was unconstitutional,” Yale-Loehr said the Supreme Court’s ruled on that state law. “It violated the federal government’s obligation to control immigration.”

This time, however, activists for immigration controls are looking at a more conservative Supreme Court, with a 6–3 rightward tilt, buoyed by the three judges former President Donald Trump appointed.

A Justice Department spokesperson acknowledged receipt of the lawmakers' letter but said the department “declines to comment further.”

A White House spokesperson, who spoke on condition of anonymity because a decision has not been announced, told the Statesman: “This is an extreme law that will make communities in Texas less safe. Generally speaking, the federal government, not individual states – is charged with determining how when to remove noncitizens for violating immigration laws.”

This article originally appeared on Austin American-Statesman: Texas Senate Bill 4 is unconstitutional, Democrats in Congress say