Justice Department Sues Texas, Says Immigration Law Unconstitutional

AUSTIN, Texas — The Justice Department on Wednesday sued Texas over a new law that would allow police to arrest migrants who enter the U.S. illegally, taking Republican Gov. Greg Abbott to court again over his escalating response to border crossers arriving from Mexico.

The lawsuit draws Texas into another clash over immigration at a time when New York and Chicago are pushing back on buses and planes carrying migrants sent by Abbott to Democrat-led cities nationwide. Texas is also fighting separate court battles to keep razor wire on the border and a floating barrier in the Rio Grande.

But a law Abbott signed last month poses a broader and bigger challenge to the U.S. government’s authority over immigration. In addition to allowing police anywhere in Texas to arrest migrants on charges of illegal entry, the law — known as Senate Bill 4 — also gives judges the authority to order migrants to leave the country.

The lawsuit asks a federal court in Austin to declare the Texas law unconstitutional. It calls the measure a violation of the Supremacy Clause, which establishes that federal laws in most cases supersede state law. 

“Texas cannot run its own immigration system,” the Justice Department states in the lawsuit. “Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

Abbott’s office did not respond to an email seeking comment.

“Biden sued me today because I signed a law making it illegal for an illegal immigrant to enter or attempt to enter Texas directly from a foreign nation.” Abbott said in a post on X, formerly Twitter. “I like my chances.”

The law is scheduled to take effect in March. Civil rights organizations and officials in El Paso County, Texas, filed a lawsuit last month that similarly described the new law as unconstitutional overreach.

The Justice Department sent Abbott a letter last week threatening legal action unless Texas reversed course. In response, Abbott posted on X that the Biden administration “not only refuses to enforce current U.S. immigration laws, they now want to stop Texas from enforcing laws against illegal immigration.”

On Wednesday, House Speaker Mike Johnson and about 60 fellow Republicans visited the Texas border city of Eagle Pass, which has been the center of Abbott’s $10 billion border initiative known as Operation Lone Star. Johnson suggested he could use a looming government funding deadline as further leverage for hard-line border policies.

President Joe Biden has expressed willingness to make policy compromises because the number of migrants crossing the border is an increasing challenge for his 2024 reelection campaign. Johnson praised Abbott, who was not in Eagle Pass, and slammed the lawsuits that seek to undo Texas’ aggressive border measures.

“It’s absolute insanity,” Johnson said.

Illegal crossings along the southern U.S. border topped 10,000 on several days in December, a number that U.S. Customs and Border Patrol Commissioner Troy Miller called “unprecedented.” U.S. authorities closed cargo rail crossings in Eagle Pass and El Paso for five days last month, calling it a response to a large number of migrants riding freight trains through Mexico to the border.

Authorities this week also resumed full operations at a bridge in Eagle Pass and other crossings in San Diego and Arizona that had been temporarily closed.

Legal experts and opponents say Texas’ new law is the most far-reaching attempt by a state to police immigration since a 2010 Arizona law that was partially struck down by the U.S. Supreme Court. That law had made it a state crime to be in the U.S. without legal status and gave police some immigration enforcement powers. A Supreme Court ruling in 2012 affirmed that immigration enforcement is solely within the authority of the federal government.

Under the Texas law, migrants could either agree to a Texas judge’s order to leave the U.S. or be prosecuted on misdemeanor charges of illegal entry. Migrants who don’t leave could face arrest again under more serious felony charges.

Those ordered to leave would be sent to ports of entry along the border with Mexico, even if they are not Mexican citizens. The law can be enforced anywhere in Texas but some places are off-limits, including schools and churches.

For more than two years, Texas has run a smaller-scale operation on the border to arrest migrants on misdemeanor charges of trespassing. Although that was also intended to stem illegal crossings, there is little indication that it has done so.