State Law and Preemption at the Mexico-U.S. Border
On October 26, 2023, in the midst of a third special legislative session, the Texas House of Representatives passed H.B. 4, a bill that would create a state crime for crossing into Texas from Mexico at any location not designated as a port of entry, and authorize law enforcement officers to order offending individuals to return to Mexico or face arrest.[1] While the Texas Senate failed to discuss H.B. 4 before the session’s end, Texas Governor Greg Abbott immediately called for a fourth special session with the express goal of criminalizing undocumented entry from the southwestern border.[2]
If made into law, H.B. 4 would form a part of Governor Abbott’s stringent border security plan Operation Lone Star, which has already cost Texas billions of dollars since its creation in 2021.[3] Opponents of the bill have raised a variety of concerns, such as the lack of a removal exception for asylum seekers, the possibility of family separation, inadequate detention facilities, and erroneous arrests of U.S. citizens.[4]
Critics also argue that H.B. 4 is clearly unconstitutional because state immigration legislation is preempted by federal law.[5] The U.S. Supreme Court confronted this preemption question in Arizona v. United States.[6] In this 2012 case, the United States challenged the constitutionality of an Arizona law, S.B. 1070, enacted to address large numbers of undocumented foreign nationals crossing over the U.S.-Mexico border.[7]
The key provisions of S.B. 1070 included compelling state law enforcement officials to verify an individual's immigration status during routine stops if there was a reasonable suspicion that the person was in the country unlawfully.[8] S.B. 1070 also created state misdemeanors for immigrants not to carry registration documents and to seek employment without a work permit, and authorized the warrantless arrest of individuals suspected of being removable from the country.[9]
In the majority opinion, Justice Anthony Kennedy examined the U.S. federal government’s allegations that the provisions were preempted by federal law via the Supremacy Clause.[10] Justice Kennedy outlined three types of state law preemption: when Congress passes legislation with an explicit “preemption provision”; when Congress has implicitly deemed a policy area to be within its “exclusive governance,” either by creating a comprehensive regulatory framework or acting in an area where there is a dominant federal interest; and when state laws are in outright conflict with federal regulations.[11]
The Court struck down three out of the four contested provisions, stating that they encroached upon the federal government's exclusive power to regulate immigration and were thus preempted by federal law.[12] The justices concluded that immigration policy was primarily the domain of the federal government, and Arizona's attempt to generate its own immigration enforcement mechanisms interfered with the federal government's authority.[13]
International actors have also aired criticism of Texas’s proposal to supplant U.S. federal law. In a statement issued in response to the bill, the Mexican Ministry of Foreign affairs voiced concerns aligning with the preemption issue of Arizona v. United States.[14] The press release recognized the right of sovereign nations to promulgate immigration policies but declared that “the Government of Mexico categorically rejects any measure that allows state or local authorities [emphasis added] to detain and return nationals or foreigners to Mexican territory.”[15]
While Mexico currently has international agreements to accept both repatriated citizens and non-citizens from select foreign nations, it would be “unprecedented” for the Mexican federal government to enter into joint immigration initiatives with U.S. states rather than the federal government.[16] In the case of non-Mexican individuals, opponents of H.B. 4 claim that Mexico has no domestic or international legal obligation to receive migrants deported by Texas officials.[17]
If the new special session results in the Texas Legislature enacting H.B. 4 and sending it to Governor Abbott for approval, there is a high probability that the legislation will meet both domestic and international legal challenges.[18] Whether the Texas bill will survive this complex legal landscape is less certain.
Colleen Kemp is a staff member of Fordham International Law Journal Volume XLVII.
[1] See J. David Goodman, Texas Lawmakers Vote to Let Local Police Arrest Migrants, The New York Times (Oct. 26, 2023), https://www.nytimes.com/2023/10/26/us/texas-house-border-migrants-arrest.html; H.B. 4 § 51.02(a), 88th Leg. 3rd C.S. (Tex. 2023); H.B. 4 § 51.02(e), 88th Leg. 3rd C.S. (Tex. 2023).
[2] See Donnie Tuggle, Education and border security in focus as Texas Legislature enters fourth special session, KBTX (Nov. 8, 2023), https://www.kbtx.com/2023/11/09/education-border-security-focus-texas-legislature-enters-fourth-special-session/.
[3] See Pooja Salhotra, With time running out, Texas Senate punts on taking action on border bill, The Texas Tribune (Nov. 5, 2023), https://www.texastribune.org/2023/11/05/texas-senate-bill-4-immigration/.
[4] See id.; see Goodman, supra note 1.
[5] See Sarah Mehta & Jonathan Blazer, White Supremacy is Fueling Extreme Anti-Immigrant Policy in Texas, ACLU (Nov. 2, 2023), https://www.aclu.org/news/immigrants-rights/white-supremacy-is-fueling-extreme-anti-immigrant-policy-in-texas.
[6] See generally Arizona v. United States, 567 U.S. 387 (2012).
[7] See id. at 392-93.
[8] See id. at 394.
[9] See id. at 393-94.
[10] See id. at 393; U.S. Const. art. VI, cl. 2.
[11] Arizona v. United States, 567 U.S. at 399.
[12] See id. at 416.
[13] See id. at 415-16.
[14] See Press Release, Secretaría de Relaciones Exteriores, El Gobierno de México rechaza las medidas antiinmigrantes aprobadas en Texas (Nov. 15, 2023), https://www.gob.mx/sre/prensa/el-gobierno-de-mexico-rechaza-las-medidas-anti-inmigrantes-aprobadas-en-texas.
[15] Id.; see Uriel J. Garcia, Mexico “rejects” Texas’ proposal to allow state police to deport undocumented immigrants, The Texas Tribune (Nov. 15, 2023), https://www.texastribune.org/2023/11/15/texas-border-bill-immigrants-crime-mexico-response/.
[16] See Camilo Montoya-Galvez, Mexico vows to continue accepting non-Mexican migrants deported by U.S. border agents, CBS News (May 3, 2023), https://www.cbsnews.com/news/mexico-agrees-accept-non-mexican-migrants-deported-by-us/; see Garcia, supra note 15.
[17] See Garcia, supra note 15.
[18] See Goodman, supra note 1.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.