On Wednesday, the federal 5th Circuit Court of Appeals in New Orleans is set to hear oral arguments in a Justice Department lawsuit alleging that Texas' controversial immigration law, Senate Bill 4 (SB 4), is unconstitutional. The lawsuit, combined with a legal challenge brought by El Paso County and Las Americas Immigrant Advocacy Center, argues that immigration is the sole purview of the federal government, while Texas contends that the state has a right to enforce its own border due to the federal government's alleged dereliction of duty.
SB 4, which has not yet taken effect due to a court injunction, permits local and state law enforcement officers to arrest people suspected of being in the country illegally, with repeat offenses classified as a felony. The law also allows local judges to order migrants to return to Mexico, regardless of their nationality or the judges' knowledge of immigration matters. Opponents, including the Biden administration and advocacy groups, argue that SB 4 will lead to racial profiling.
Marisa Limón Garza, executive director of Las Americas Immigrant Advocacy Center, sees the resistance to SB 4 as a potential turning point in Texas politics, drawing parallels to the backlash against anti-immigrant legislation in California in the 1990s and Arizona in the 2010s. "I don't have rose-colored glasses but I look to history, to California's Prop 187 and Arizona's S.B. 1070, and I see states that took short-term hits," Limón Garza said. "But people changed those states."
Fernando Garcia, executive director of the Border Network for Human Rights, noted that SB 4 is mobilizing Texas immigrant communities in unprecedented ways, with 50 organizations uniting under the "We Will Resist Campaign Coalition" to protest outside the courthouse in New Orleans on Wednesday.
However, Selene Rodriguez, who runs the conservative-leaning Texas Public Policy Foundation's "Secure and Sovereign Texas" campaign, believes that resistance to SB 4 will not approach the levels seen in California and Arizona. "You are always going to have split opinions," Rodriguez said, "but I am seeing a growing increase in people wanting stricter immigration laws, especially in Hispanic communities. My community is tired of the human smuggling attempts."
Despite the legal challenges, Texas Gov. Greg Abbott has continued to invest political capital and taxpayer money in his border strategy, touting the state's migrant busing program and breaking ground on a "forward operating base" for the Texas National Guard at the border. In a February poll by the Texas Politics Project at the University of Texas at Austin, more than half of respondents supported Abbott's border measures, including making it a state crime for an undocumented immigrant to be in Texas in most circumstances.
As the case progresses through the court system, likely headed for the Supreme Court, the potential political consequences of SB 4 remain uncertain. Alex Nowrasteh, vice president for economic and social policy studies at the Libertarian CATO Institute, noted that SB 4 differs from California's Prop 187 in important ways, specifically prohibiting enforcement at locations such as schools, hospitals, and churches, and focusing on border security rather than interior enforcement.
Nonetheless, immigrant advocacy organizations are building coalitions within Texas and connecting with activists who led the charge against Prop 187 in California and resisted SB 1070 in Arizona. "That's how I sleep at night," Limón Garza said. "I think, there is going to be collateral damage. There will be harm. But it goes back to strategy and being very intentional. If we are disciplined in our strategy, we could come back in 10 years stronger."
The strength of resistance to SB 4 may not be fully realized until the law takes effect, according to Kristin Etter, director of policy and legal services at the Texas Immigration Law Council. "If it does clear the legal challenges, we'll have to see how it's implemented and where it's implemented," Etter said. "The strength of resistance to the law may not be felt until Texans realize what the impacts will be when immigrants start leaving the state or when they see their own family and friends pulled over."
