Abbott challenges feds by ordering Texas soldiers, troopers to return migrants to border

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Texas Gov. Greg Abbott ordered state National Guard soldiers and law enforcement officers Thursday to apprehend and return migrants suspected of crossing illegally back to the U.S.-Mexico border, testing how far his state can go in trying to enforce immigration law — a federal responsibility.

The order comes days after a group of right-wing Texas officials — alongside a few former Trump administration leaders and U.S. Rep. Chip Roy (R-Tex.) — asked the Republican governor to invoke the state and U.S. constitutions in declaring an “invasion” at the southwest border and to use his powers to repel it. The leaders of the sparsely populated counties near the border with Mexico complain that they have been overrun by smuggling attempts and increasing numbers of migrants evading detection.

The order appears to be unconstitutional, legal experts said, and may have little practical impact on Abbott’s ongoing, expensive and controversial border security initiative, Operation Lone Star. But it represents an escalation for the governor, who is running for reelection and eyeing national office, in a broader drama full of anti-immigrant rhetoric and legally dubious actions designed to challenge the federal government’s exclusive powers over immigration enforcement — potentially all the way to a conservative-majority U.S. Supreme Court.

“I think it is pretty clear under current precedent that this is the type of decision that the federal government gets to make,” said Steve Vladeck, a professor at the University of Texas School of Law. “But I also think the most relevant Supreme Court precedent may very well be the target of this policy.”

In 2012, the Supreme Court ruled on a series on immigration-related laws, including the S.B. 1070 or “show me your papers” law, passed by the Arizona legislature, affirming that states cannot enforce their own immigration laws.

“I cannot envision a legal argument under which the governor of Texas would be allowed to engage in unilateral immigration enforcement,” said Denise Gilman, director of the Immigration Clinic at the University of Texas at Austin. “We don’t want each state enforcing their own immigration laws.”

Busing migrants, halting trade: Abbott bets future on divisive border plans

But Texas has poured billions, including by diverting federal coronavirus relief funding, into its border crackdown, sending thousands of National Guard troops and directing Department of Public Safety officers to help patrol and arrest migrants in southern Texas. With each new step, Abbott is attempting to blur the lines between federal and state authority. The state has bused migrants to Washington, halted commercial traffic on international bridges for what critics called unnecessary inspections, challenged the Biden administration in court and emptied state prisons to jail migrants. It also is raising money to build a border barrier.

The White House criticized Abbott’s latest plan Thursday.

“Governor Abbott’s record on immigration doesn’t give us confidence in what he has cooked up now. His so-called Operation Lone Star put national guardsmen and law enforcement in dangerous situations and resulted in a logistical nightmare needing Federal rescue, and his secondary inspections of trucks crossing into Texas cost a billion dollars a week in trade at one bridge alone without turning up a single case of human or drug trafficking,” White House spokesperson Abdullah Hasan said in a statement.

“President Biden is focused on real policy solutions to actually secure our border,” the statement added.

Civil rights groups have asked the Justice Department to investigate Operation Lone Star for possible civil rights violations. The Texas Tribune reported this week that federal officials had opened an inquiry into Abbott’s program but that Justice Department officials did not respond to questions about the scope of their probe. A federal…