Do constitutional restrictions apply to Texas but not to Biden? 

A federal appeals court has extended its hold on the implementation of Senate Bill 4, a Texas immigration bill that makes illegal border-crossers deportable under Texas state law.  

Texas Gov. Greg Abbott (R) claims that the law, signed on Dec. 18, 2023, is necessary because the Biden administration has willfully refused to enforce our nation’s immigration laws. 

The administration’s position is that S.B. 4 is preempted and violates the U.S. Constitution. The Constitution tasks the federal government with regulating immigration and controlling international borders. A “decision on removability,” the argument goes, touches “on foreign relations and must be made with one voice.”  

The decision on preemption could go either way. The Supreme Court sometimes applies a canon of statutory construction known as the “presumption against preemption,” which provides that federal law should not be read as superseding states’ historic police powers “unless that was the clear and manifest purpose of Congress.” 

This situation is totally unprecedented. No other state has ever made illegal border-crossing a state crime. No state has ever had such a strong reason to enact such legislation. 

Ultimately, the Supreme Court will have to decide whether S.B. 4 is unconstitutional. 

The administration may regret this litigation, though. The high court could decide that the administration’s policies that caused Texas to enact S.B. 4 are unconstitutional.  

Article II, Section 3 of the Constitution provides that the president “shall take Care that the Laws be faithfully executed.” President Biden may have violated this provision by releasing more than 2.3 million illegal border-crossers without visas or other valid entry documents into the country. 

If Texas is allowed to implement S.B. 4, it could become a major deterrent to illegal border-crossings. Migrants won’t be as inclined to make an illegal crossing into Texas if it is likely that they will be arrested, prosecuted in criminal proceedings, and then sent back to Mexico. And the Texas border makes up about half of the U.S.–Mexico border, stretching 1,254 miles from the Gulf of México to El Paso.  

S.B. 4 would make it a misdemeanor punishable by incarceration for up to one year, with a fine, for a migrant to enter or attempt to enter Texas directly from a foreign nation at any location other than a lawful port of entry. Subsequent offenses would be felonies.  

However, it is apparent that Texas does not intend to incarcerate or fine illegal border-crossers. It is merely trying to deter illegal crossings. 

In the case of a first offense, a judge could, at any time after the migrant’s appearance before a magistrate, dismiss the charges pending against any migrant who agrees to the issuance of an order requiring a return to the country from which the migrant made the illegal entry. Refusal to comply with such an order would be a felony. 

Federal law has a similar voluntary departure provision for deportable migrants. 

Would S.B. 4 interfere with Border Patrol operations?  In a recent interview with CBS News, Border Patrol Chief Jason Owens said S.B. 4 is "not going to stop us from doing our job," and that there is "no better partner for the Border Patrol than the Texas Department of Public Safety. 

"We have worked hand in hand with that agency for as long as I've been around, and I don't see that ever stopping. They have always been very good at complementing our mission," he said. "They back us up when we're out in the field, and we do for them as well. So, whatever the laws are that they're going to be enforcing, our mission remains constant." 

[W]e “need to take a look at the asylum laws and make it where only people that have a legitimate claim can claim asylum," the border chief continued. "[W]e need to be able to enforce the immigration laws that are on the books and hold people accountable whenever they choose to break the law. I'm talking about jail time. I'm talking about being removed from the country and I'm talking about being banned from being able to come back because you chose to come in the illegal way instead of the established lawful pathways that we set for you." 

Crossing the border illegally between ports of entry is a federal crime. Conviction for a first offense subjects the illegal crosser to a fine and imprisonment for not more than six months, or both; conviction for a subsequent offense subjects that person to a fine, or imprisonment, for not more than two years, or both. 

Owens also said that his agency is on track to record 2 million apprehensions of illegal border-crossers during the current fiscal year.  

“That number is a large number, but what's keeping me up at night is the 140,000 known got-aways,” he said, referring to illegal crossers who are detected by cameras and sensors but not apprehended. This is a “national security threat.”  

We must know who is coming into our country and what their intentions are. 

The litigation over S.B. 4 is really just a distraction to divert attention from what is happening at the border. The Border Patrol is already working with Texas law enforcement officers, and S.B. 4 won’t change that.  

The real problem seems to be that Biden is violating the constitutional mandate requiring presidents to take care that laws be faithfully executed. It will be ironic if Biden’s violation of the "take care" provision is ignored, and the Constitution is used to stop Texas from doing what it can to secure its border. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.