The U.S. Department of Justice (DOJ) has sued Texas in federal court to block the implementation of a new state law, known as SB4, which purports to give officers of the state the power to arrest, prosecute, punish, and deport people who unlawfully cross the border from Mexico into Texas. In a statement, Associate Attorney General Vanita Gupta laid out the federal government's position succinctly: “SB4 is clearly unconstitutional."
The DOJ complaint argues that point from two different angles. First and foremost, it argues that SB4 is preempted according to the Supremacy Clause, citing 2012 precedent from Arizona v. United States. Additionally, the DOJ argues that regulation of the border is the sole responsibility of the federal government, expressly reserved to it by the Foreign Commerce Clause.
Recent Supreme Court Precedent Provides the Blueprint for DOJ's Suit
State laws aimed at making life more difficult for undocumented immigrants are nothing new, especially as immigration has increasingly been used as a political wedge issue. Just over a decade ago, Arizona rolled out laws that created state crimes based on federal immigration status. In 2012, Arizona's immigration legislation was largely invalidated by the Supreme Court, which found that it was invalid under the doctrine of preemption.
Arizona's laws were designed to punish people who failed to comply with federal immigration laws or sought work without authorization. These measures included a provision to increase the authority of state officers to arrest migrants who might be removable from the country under federal law. The Supreme Court determined that the key facets of Arizona's legislation were preempted by federal law and therefore invalid under the Supremacy Clause of the Constitution.
When the Preemption Doctrine Applies
The preemption doctrine requires state laws to give way to federal laws when the two are in conflict, and courts apply it in three distinct scenarios. First, state laws are preempted when Congress enacts a law with an explicit provision to limit state authority. Second, state laws are automatically preempted when they conflict with federal laws in such a way that compliance with both the state and federal laws would be impossible. Finally, preemption applies when a state law creates an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
In the Arizona case, the Supreme Court found that because Congress had enacted a comprehensive scheme for regulating immigration with detailed requirements and penalties, the federal government had chosen to occupy the entire field of regulation and therefore parallel state laws were preempted. This “field preemption" even blocks state laws that seem to support the same goals as the federal law because their enforcement would muddle or detract from the cohesiveness of the federal framework. As a result, the Court invalidated the portion of the Arizona law that imposed penalties against immigrants for acts already prohibited under federal law.
Another part of the Arizona legislation, the portion that punished immigrants who sought work without authorization, was also preempted by the Supreme Court. Looking to the Immigration Reform and Control Act of 1986 (IRCA), the Court found that Congress had intended to regulate employment by non-citizens comprehensively and ruled that the Arizona statute would interfere with the federal scheme. Because the state law would impose criminal liability when the federal law provided only for civil penalties, the Court ruled that it must be preempted so that it would not frustrate the purposes and objectives of IRCA.
Perhaps most relevant to the challenge to the new Texas law, the Supreme Court also examined Arizona's statute that increased state officers' authority to arrest immigrants suspected of being subject to removal under federal law. This provision was preempted for creating an obstacle to the purposes and objectives of the federal government, which has exclusive purview to regulate the entry and removal of noncitizens. The acts of detaining and removing immigrants were also noted to touch on foreign relations with other nations, a power reserved for the federal government.
Because the two states' legislative approaches were so similar, it is no surprise the DOJ suit leans heavily on the precedent of Arizona v. United States.
Mexican Government Weighs in on Texas Law
The DOJ complaint cites an official statement from the government of Mexico, which emphasizes the ways that the new law could create mayhem in international relations. The statement from Mexico raises concerns that SB4 will damage the human rights of migrants and “result in the separation of families, discrimination, and racial profiling."
Mexico asserts that it works jointly with federal U.S. authorities to address migrant issues, and it rejects any measure that allows state and local officials to enforce immigration policies. One key point, raised by both the DOJ and Mexico, which could be fatal to SB4's constitutionality, is that SB4 purports to allow Texas authorities to deport non-Mexican immigrants to Mexico. Federal immigration authorities remove unauthorized immigrants to their home countries, if possible, or to a willing third country.
Texas' Pattern of Anti-immigrant Measures
In Texas, the enactment of SB4 is just one of many anti-immigrant tactics used by Governor Greg Abbott's Republican-dominated government.
- In 2022, Texas put the brakes on international supply chains by implementing a system of redundant inspections on commercial trucks entering Texas from Mexico.
- Last year, Texas authorities spent $100 million bussing migrants to other states, specifically to large cities run by Democrats.
- More recently, state officers have even blocked the federal border patrol from an area along the border, prompting another legal action from the DOJ.
Abbott has claimed that his state is doing everything possible to stop immigration short of “shooting people who come across the border" in a widely condemned comment.
Texas has not been an independent nation since 1845, so the state remains subject to federal court decisions. This is again where the limits of state powers will be defined.
Related Resources
- U.S. Gives Legal Status to Families Separated Under Trump (FindLaw's Law and Daily Life)
- Immigration Law (FindLaw's Learn About the Law)
