Last month, the United States Court of Appeals for the Fifth Circuit blocked Texas from enforcing a law that would empower state and local law enforcement to ask anyone who “looks” foreign to prove their immigration status. This dangerous law, Senate Bill 4 (SB 4), would have inevitability led to racial profiling of Latinx communities and other communities of color. Yet the danger has not passed—not only is Texas appealing the ruling, but many states are working to pass similar laws, all of which have the potential to weaponize local law enforcement against immigrant communities in disastrous ways.
The heavily contested Texas law would allow state and local law enforcement officers to arrest, imprison, and even deport people suspected of immigration violations. The bar for suspicion is set shockingly low, fueling racial profiling and the scapegoating of people not born in the United States. And, if detained, those found entering the state without documentation for a second time would face an unconscionable 10 to 20 years in prison.
SB 4 is a shocking power grab attempt by a state government—and one that may ultimately be found unconstitutional. In numerous decisions, the U.S. Supreme Court has asserted that only the federal government can determine who may remain in the country. For example, in 2012, the Court struck down the notorious Arizona Senate Bill 1070, which would have allowed state police to demand proof of citizenship and arrest people suspected of committing a deportable offense.
The Fifth Circuit’s stay of SB 4 was made on similar grounds. In its decision, the court wrote that, “For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power.”
Yet, SB 4 continues an alarming trend of state and local governments attempting to create separate and harsher immigration enforcement systems outside of the federal government. Beyond Texas, states like Arizona, Iowa, Kansas, Louisiana, Mississippi, _and West Virginia are seeking new ways to criminalize immigration and weaponize local law enforcement against people born outside of the United States.
In Texas, the legislators drafting these laws say they are working to “secure the border” and fight “illegal activity,” though these proposals would have little impact on either.
At Vera, we have spent decades researching how the U.S. criminal legal and immigration systems can harm people without improving public safety. Our country inappropriately tasks state and local law enforcement with responding to people struggling with economic, mental health, and substance use challenges—causing harm and sometimes leading to people’s arrest, incarceration, or death—as opposed to providing supportive services, treatment, or economic opportunities.
People seeking to live in the United States need a functional and fair federal system with expanded pathways to permanent settlement. Increased surveillance by local law enforcement will sow fear and confusion and is not a solution to the systemic problem.
Local law enforcement leaders in Texas agree that immigration enforcement should be left to the federal government. Maverick County Sheriff Tom Schmerber told Border Report that his deputies are not trained to legally remove people suspected of immigration infractions for deportation to Mexico, as they would be required to under SB 4. “What if we deport a U.S. citizen?” he said. “My deputies are not trained for immigration work.”
Moreover, without addressing the factors that drive people to seek asylum, criminalizing and jailing more people not born in the United States will fail to deter migration. The people “coming through San Antonio … many of them have traveled by foot thousands of miles through great personal danger,” said San Antonio Mayor Ron Nirenburg. “To suggest that these kinds of confusing pieces of legislation that really challenge local law enforcement more than anything else would be a deterrent is kind of ridiculous on its face.”
Although SB 4 is halted, at least temporarily, Texas continues to use state and local law enforcement resources to harass and imprison people. In 2021, Governor Greg Abbott launched Operation Lone Star, a set of border initiatives and policies enabling state law enforcement to arrest people suspected of being undocumented and charge them with crimes like trespassing. They are then funneled into a separate criminal legal system, where they are detained in shadowy tent facilities and have cash bail amounts set at twice the normal amount, according to Vera researchers. In addition to the typical harms caused by overpolicing, Operation Lone Star has also resulted in deadly vehicle pursuits that have killed bystanders, including a 7-year-old girl out getting ice cream with her grandmother.
Abbott, one of the primary drivers behind SB 4, has claimed that the law is necessary to suppress an “invasion.” This kind of falsehood and fearmongering is commonly deployed by politicians to justify criminalizing people who come to the United States. But, as Senior U.S. District Judge David Alan Ezra wrote in the preliminary injunction blocking the enforcement of SB 4, “Surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.”
All of these legal maneuvers and charged rhetoric distract us from the truths about immigration. It is perfectly legal to request asylum—and the United States has both moral and legal obligations to hear every asylum claim. Even more, the people arriving to the United States contribute to the economic growth and safety of our communities. Millions of people in the United States are employed by immigrant-founded and immigrant-owned businesses, and immigrants participate in the labor force at a higher rate than the U.S.-born population. Immigrants of any legal status are uniformly found to be less involved in crime than Americans who were born here. And a study of arrests in Texas found that the criminal conviction rate for undocumented people was 45 percent below that of people born in Texas.
We all can agree that the U.S. immigration system needs to be rebuilt to align with 21st-century realities. But lawmakers continue to fall back on the tired tactics of punitive enforcement and mass incarceration—policies that we have watched fail time and time again. Harsh policies like SB 4 will neither deter migration nor solve the problems in our immigration system. Our immigration system is complex, antiquated, and overwhelmed. We need to shrink the punitive and ever-expanding immigration, detention, and enforcement system and build a modern one. The United States should expand pathways to lawful, permanent settlement, improve immigration case processing, and invest in federally-funded universal representation and social services to ensure that all children, families, and adults are treated humanely and are afforded due process.
The voices demonizing immigrants may be loud, but the majority of the public knows that immigration brings benefits to the United States—enriching our economy, culture and values. Our vision must expand beyond what we have done in the past. It is time to both meet the current moment and look to a future where all people in the United States receive respect and fair treatment under the law, no matter where they were born.
