State-Level Immigration Laws, Pending in Federal Courts, Could Face New Landscape Under Trump Administration

A migrant “invasion,” “President Biden’s border crisis,” “unprecedented levels of illegal immigration” — this is how lawmakers defended passing legislation to enforce immigration matters at the state level earlier this year. Yet with President Biden on his way out of office, and a significantly tougher-on-immigration president on his way in, the legal and political landscape is likely to change soon for several state-level immigration laws that are pending in the courts.Texas’s Senate Bill 4 — which aims to make illegal entry a state-level crime by allowing Texas police to arrest migrants and state judges to them — has been tied up at the Fifth Circuit Court since the spring. That legislation was passed by the legislature and touted by Governor Abbott as a desperate but necessary attempt for the state to defend itself because of “President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border.” The Biden administration sued Texas over the law, arguing that the 2012 Supreme Court precedent in Arizona v. United States makes it clear that immigration is the federal government’s exclusive domain. Oklahoma and Iowa passed copycat laws after Texas’s S.B. 4, and the Biden administration sued those states as well. All three laws have been temporarily halted, pending further court rulings on their legality. Most recently, Arizona voters overwhelmingly passed a ballot measure that seeks to allow state police to arrest illegal immigrants and judges to deport them, but that provision can’t go into effect until a similar law in another state goes into effect for at least 60 days. States had to pass these measures because they were “completely abandoned” by the federal government, the director for Texas Public Policy Foundation’s Secure & Sovereign Texas campaign, Selene Rodriguez, tells the Sun. These state-level efforts will remain necessary under a Trump administration because “we’ve had four years of this disaster,” she says. “We’ve had four years of millions of foreign nationals coming into our country, unvetted. We don’t know where so many of them are. We don’t know their true identities,” she says, adding that it will take a very large law enforcement effort to clean things up, including cooperation at the federal, state, and local levels.The Trump administration appears to be “very much willing” to cooperate with states, she says.“We know we have this incoming administration for four years, but we have no idea what it’s going to look like after four years,” she says. “We’ve learned the hard lesson, the hard way, that we have to stand on our own sometimes, and we have to be better prepared to do that. We have to be proactive and not reactive.”Trump took a hard line on immigration throughout his presidential campaign, and on Monday, he confirmed that he would use “military assets” to carry out mass deportations. The Trump-Vance transition team didn’t respond to a request for comment from the Sun about the state-level immigration laws.“I think it’s very likely that the Trump administration will take the federal government out of the case challenging S.B. 4,” a Temple University law professor specializing in immigration and constitutional law, Peter Spiro, tells the Sun. “At the same time, the Trump administration will see these measures as consistent with its anti-immigration agenda. So there’s a good chance that these states will not shelve these laws even though they are no longer oppositional to federal policy.”Trump could see the state-level laws as part of a “‘force multiplier’ component of his mass deportation ambitions, something the federal government doesn’t have the capacity to fully execute on its own,” he adds. With the potential to upend immigration enforcement across the county, Texas’s S.B. 4 garnered national attention earlier this year as it bounced between the courts, even reaching the Supreme Court at one point – only to be sent back down to the Fifth Circuit to be weighed on its merits. It’s widely expected that regardless of which way the Fifth Circuit rules on it, the losing party will appeal to the Supreme Court. Mr. Spiro says that’s likely to be the case even if President Trump’s Justice Department drops the lawsuits.“Just because the Trump administration takes the federal government out of the legal challenges doesn’t mean they will go away,” he says. “There are other challengers who will be able to press the case.” Texas’s legislation “flies in the face of recent precedent,” he adds.“In ordinary times one would expect S.B. 4 to be found unconstitutional,” Mr. Spiro says. “But these are not ordinary times, and conservative jurists are finding their way around precedent. So there’s a fair chance at least that S.B. 4 survives the legal challenge and goes into effect.”

State-Level Immigration Laws, Pending in Federal Courts, Could Face New Landscape Under Trump Administration

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