Itemoids

Constitution

Texas’s Immigration Policy Is Getting More Aggressive

The Atlantic

www.theatlantic.com › ideas › archive › 2023 › 07 › texass-immigration-policy-biden › 674784

A pregnant teenager writhing in pain as she suffered a miscarriage while trapped in the barbed wire that Texas has strung along miles of the state’s southern border.

A 4-year-old girl collapsing from heat exhaustion after Texas National Guard members pushed her away from the wire as she tried to cross it with her family.

Texas state troopers receiving orders from their superiors to deny water to migrants in triple-digit heat. Officers on another occasion ordering troopers to drive back into the Rio Grande a group of migrants, including children and babies, that they found huddling alongside a fence by the river.

These are all incidents that a medic in the Texas Department of Public Safety says he witnessed during recent patrols, according to an explosive email published this week by the Houston Chronicle and the San Antonio Express-News. “I believe we have stepped over a line into the in humane [sic],” the medic, Nicholas Wingate, wrote in the email.

These revelations capture not only the extreme tactics that Texas’s Republican governor, Greg Abbott, and state law-enforcement officials are employing against undocumented migrants seeking to cross the U.S. border with Mexico. They also show how aggressively Texas and other Republican-controlled states are maneuvering to seize control from President Joe Biden’s administration over immigration policy. To many immigration experts, these moves by Texas, like the harsh measures against undocumented migrants signed into law this spring by Florida Governor Ron DeSantis, push to the edge the legal limits on states’ ability to infringe on federal authority over immigration.

“U.S. immigration law governs the border; Texas law doesn’t govern the border,” David Leopold, a former president of the American Immigration Lawyers Association, told me. Federal law, he noted, establishes a process for handling undocumented migrants seeking asylum in the United States. “It may not be a process that I like, or you like, or people in Texas like, but it’s a process,” Leopold added. “And that process does not include taking a 4-year-old child and throwing that child into the water … or depriving them of water when the temperatures are above 100 degrees. Those are not our values. Those are not our laws.”

[Jerusalem Demsas: Why deterrence policies create border chaos]

Abbott has defended the state’s enforcement effort by arguing that Biden’s immigration policies have exposed his state’s residents to dangerous migrants and drug smuggling, and has endangered migrants themselves by encouraging them to make the arduous trek to the southern border. Responding to Wingate’s email, Abbott’s top law-enforcement officials issued a joint statement in which they maintained that “these tools and strategies—including concertina wire that snags clothing” were necessary to discourage migrants from making “potentially life-threatening and illegal crossings.”

The red-state offensive against undocumented immigration sits at the crossroads of two powerful trends in the Donald Trump–era Republican Party. One is the growing movement in the red states to roll back a wide range of civil rights and liberties, including voting rights, access to abortion, and LGBTQ protections.

The other is an arms race among Republican leaders to adopt ever more militant policies against undocumented immigrants. That dynamic is carrying the party beyond even the hard-line approaches that Trump employed in the White House.

Both DeSantis and Trump, for instance, have promised that if elected, they will move to end birthright citizenship, the guarantee under the Fourteenth Amendment that anyone born in the United States is automatically an American citizen. In his town-hall appearance on CNN, Trump suggested that he would reinstate his widely condemned policy of separating the children of migrants from their parents at the border to discourage illegal crossings. And he’s promised to “use all necessary state, local, federal, and military resources to carry out the largest domestic deportation operation in American history.” That’s an idea Trump often discussed but never risked trying to implement as president.

DeSantis, meanwhile, has indicated that he would authorize federal border-enforcement personnel to use force against suspected drug smugglers. He’s also talked about deploying the Navy and the Coast Guard if Mexico does not act more aggressively to interdict the arrival of chemicals used to manufacture drugs.

Simultaneously, DeSantis and Abbott have been at the forefront of the red-state efforts to seize more control over immigration policy. The legislation DeSantis signed contains sweeping measures to crack down on undocumented migrants, including criminal penalties for anyone providing transportation for such a migrant in Florida.

Abbott, for his part, is building an enforcement apparatus outside the control of the federal agencies legally responsible for managing the border. His efforts represent one of the most tangible—and consequential—manifestations of what I’ve called the red-state drive to build “a nation within a nation” that operates by its own rules and values.

Abbott has not gone as far as conservative activists who claim that the Constitution gives states the right to set their own immigration policies, on the grounds that they are facing an “invasion” of undocumented migrants. During a campaign stop in Texas, DeSantis embraced that fringe legal theory and argued that it provides states, not just the federal government, deportation authority.

Most immigration-law experts are dubious that even the current conservative Supreme Court majority would agree, and Abbott has not claimed this power. Operation Lone Star, the expansive enforcement effort he launched in 2021, is not attempting to deport undocumented migrants it apprehends in the state. Instead, Texas has returned them to the border, arrested them, or bused them to Democratic-controlled jurisdictions. Abbott’s choice not to claim deportation authority under the invasion theory has generated a steady stream of criticism from some immigration hard-liners.

Yet the revelations in the emails from Wingate, the Texas state trooper, show how far the state has already moved toward usurping federal authority. It has lined its southern border with miles of concertina wire and sunk barrels wrapped in that wire into the river. Recently, the state placed floating buoys in the river to block areas that might be easier and safer to cross. State troopers and National Guard members are also using force to push migrants away from the barbed-wire barricades. Republican governors from nearly a dozen other states have sent law-enforcement personnel, equipment, or both to Texas to support Abbott’s efforts.

“In the federal government’s absence, we, as Governors, must band together to combat President Biden’s ongoing border crisis and ensure the safety and security that all Americans deserve,” Abbott wrote in a letter asking other states to send resources.

Wingate, in his email, noted one consequence of these efforts: “With the [razor] wire running for several miles along the river in areas where it is easier for people to cross. It forces people to cross in other areas that are deeper and not as safe for people carrying kids and bags.”

He recounted the story of a woman who was rescued in the river with one of her children, while another one of them drowned. Wingate also reported that a man suffered “a significant laceration” on his leg while extricating his child from one of the wire-wrapped barrels sunken in the river.

“We have a governor who is literally using the full force of his government to inflict physical harm and even death on people,” Democratic Representative Veronica Escobar of Texas told me. “The fact that he is using the government doesn’t make it any less horrific and it certainly doesn’t make it lawful.”

Beyond the human costs, the red-state border-enforcement effort raises pointed questions about legal authority. Escobar and six other Democratic U.S. representatives from Texas last week wrote to Attorney General Merrick Garland and Secretary of State Antony Blinken, asking them to investigate whether Abbott’s buoys violate U.S. and international law, including the 1848 Treaty of Guadalupe Hidalgo, which ended the Mexican-American War. Escobar told me she believes that not only should the Justice Department take legal steps to stop Abbott’s enforcement program; the Biden administration should be “sending in federal personnel to remove all of” the physical barriers Texas has constructed.

[Adam Serwer: A crime by any name]

The White House this week condemned the actions disclosed in the email; The Texas Tribune and ProPublica have reported that the Justice Department is already investigating whether Operation Lone Star is violating federal civil-rights laws. A spokesperson said Wednesday. that the department is assessing Wingate’s allegations, and it seems likely that the administration may soon announce further actions.

White House spokesperson Abdullah Hassan told me via email late yesterday that while the White House "won't be getting ahead" of the Justice Department assessment, it condemns "Governor Abbott’s actions in the strongest terms.” Abbott's actions, Hassan charged, "are putting the lives of migrants and Border Patrol agents in danger, and are creating chaos at a time when our border enforcement plan has brought unlawful border crossings down to the lowest levels in years.”

But many immigration advocates have joined Escobar in arguing that Biden should be challenging the red-state encroachments on federal immigration authority more forcefully.

“There needs to be federal investigations of this,” David Leopold told me. “The Biden administration should be out front in demanding that the creation of chaos at the southern border by these southern governors stops now.”

Angela Kelley, a former senior adviser to Homeland Security Secretary Alejandro Mayorkas, told me that the Biden administration generally sought to minimize conflict with Abbott early on, while it was struggling to redirect many of Trump’s federal immigration policies. But Texas, she said, is now pursuing “actions [that] actually exceed the atrocities of Trump’s child separation policy.” If Biden feels pressure from congressional Democrats and advocacy groups, “I think that they will act, because it will be an embarrassment that this administration sat back and let” Texas pursue such policies “in an arena that is really the federal government’s responsibility,” said Kelley, now the chief policy adviser to the American Immigration Lawyers Association.

Ironically, Texas is pursuing these severe approaches just as the administration’s own program finally appears to be reducing the pressure of undocumented migration. Despite predictions of chaos when Biden ended Trump’s pandemic-era Title 42 policy this spring, conditions appear to be stabilizing somewhat at the border: On Tuesday, the administration reported that encounters with undocumented migrants at the southwestern border had fallen by more than 40 percent from May to June, to the lowest monthly level recorded since early 2021. But with polls consistently showing that most Americans disapprove of Biden’s handling of immigration and trust Republicans more on the issue, Abbott and his fellow Republican governors clearly have felt comfortable embracing ever more extreme tactics.

In response to the Wingate revelations, Texas Department of Public Safety officials launched an internal investigation and denied that they had implemented a policy of refusing water to apprehended migrants or pushing them into the river. But in his statement after the disclosures, Abbott made clear that he has no intention of retreating from Operation Lone Star. Conservative Texas state legislators are already calling on Abbott to maintain the effort, and local political observers told me they are dubious that he will back down in any way.

As long as the Texas program continues in its current form, more abuses may be inevitable. Doris Meissner, the director of the Immigration and Naturalization Service under President Bill Clinton, points out that even if the state has not instituted a blanket policy ordering such belligerent actions as denying water to migrants, “it is highly predictable that this kind of overreach will happen” in individual units because the state is trying to enforce immigration law with people who are “not trained to do this.” Several other Texas public-safety officers told The New York Times on Thursday that they had received orders to deny water to migrants and to tell them to return to Mexico.

Abbott’s willingness to pursue such a militant enforcement campaign, and the decision by so many Republican governors to assist him, provides another measure of the same impulse evident in the proliferating red-state laws restricting or banning abortion, rolling back voting rights, and prohibiting gender-affirming care for transgender minors. All capture a determination to slip the bonds of national authority and impose a set of rules and policies that reflect the priorities and grievances of the primarily older, white, nonurban and Christian coalition that has placed these states’ leaders in power.

That impulse, as Leopold says, is producing a dangerous “balkanization” of the country reminiscent of the years before the Civil War. It has also motivated the leadership of the nation’s second-largest state to conclude that the threat of undocumented immigration is sufficient to justify, both legally and morally, entangling children and pregnant women in coils of razor-sharp wire.