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This ain't just Texas: More states want power to wage 'war' on migrants

The Marshall Project reports that several states are sending troops to the Southern border as the legal battle over immigration enforcement continues.

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Texas Tactical Border Force guardsmen on a bus wait for departure at the Million Air El Paso ELP airport.

Brandon Bell // Getty Images

Close to 200 National Guard soldiers and state police officers from Iowa, Indiana and Nebraska are preparing to deploy to the southern border in Texas, as a bitter partisan battle over immigration enforcement roils, and as the border itself becomes increasingly militarized. According to Newsweek, at least 14 states have sent soldiers since 2021, all on the order of Republican governors.

As reported by The Marshall Project, the personnel have been dispatched to assist with Texas Gov. Greg Abbott's Operation Lone Star, an effort to police the border with state resources on the premise that the federal government has failed to do so effectively. The plan has included the deployment of thousands of national guardsmen, the erection of floating barriers and concertina wire, and roughly 40,000 criminal arrests (mostly for trespassing on private property). It has also created a testy ongoing standoff with federal agents at a high-volume crossing location in Eagle Pass, about two hours southwest of San Antonio.

Texas and the federal government are also facing off in court, where at the end of March, the Fifth Circuit Court of Appeals froze a law signed by Abbott that would make it a state crime to cross the border illegally. Were it to take effect, SB 4 would dramatically increase the state's legal authority to criminally prosecute migrants, essentially creating a parallel immigration law system, complete with Texas-run deportations. Even the very conservative Fifth Circuit has been reluctant to contradict the vast body of law that delegates sole immigration enforcement powers to the federal government.

"For nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power," wrote Chief Judge Priscilla Richman.

The Fifth Circuit was heard more arguments over the law last month, but has not yet issued any further rulings. Most observers, including Abbott himself, expect that the Supreme Court will decide the fate of Texas' law.

The rapidly evolving status of the law — at the end of March, different courts unpaused and re-paused its enforcement within a matter of hours — has left many confused, migrants and lawyers alike. Adam Isacson, director for defense oversight at the Washington Office on Latin America, a human rights nonprofit, told The New York Times that even unenforced, the law is prompting some migrants to try to cross the southern border in other states. Other experts note that Mexican authorities are changing enforcement strategies, which may also be driving down Texas crossings.

Overall, encounters with the U.S. Border Patrol were down nationwide in February, but the situation remains dire and chaotic. Nine migrants were charged with crimes including "inciting a riot" in March, after a group overwhelmed guardsmen and breached the barriers.

One of Texas' legal arguments for SB 4 is built on the idea that the nation is under "invasion" from migrants, giving the state the authority to "engage in war." Writing for Lawfare this week, Ilya Somin argues this reading goes against the Constitution. Still, it's a framing that has caught on. At least seven Republican-controlled states have passed or are attempting to pass similar laws to SB 4, and many lawmakers have spoken of an "invasion."

In addition, Tennessee and Georgia both passed related bills in March, bolstering the requirements for local police to inform federal immigration officials about undocumented persons. According to sponsors of the Georgia law, the effort was prompted by the death of Laken Riley, a 22-year-old nursing student who was killed while out for a jog in February. Authorities have said that Jose Antonio Ibarra, who has been charged with Riley's murder, is a Venezuelan asylum-seeker who had previously been arrested and released in New York and Georgia.

Riley's death was quickly turned into political fodder for conservatives, who blame President Joe Biden's border policies for unleashing a "catastrophic wave of violent crime."

Writing for The 19th in March, Mel Leonor Barclay and Barbara Rodriguez said that "broadly framing immigrant men as dangerous next to imagery of young White women victims," is an old political strategy. While individual cases can be horrifying and evocative, data suggests undocumented immigrants are convicted of murder at a lower rate than native-born Americans. More broadly, an analysis by The Marshall Project found that immigration has not increased crime rates across a variety of offenses.

According to an Associated Press-NORC Center for Public Affairs Research poll released on March 28, Americans are increasingly concerned about immigrants — both legal and illegal — committing crimes. The same poll found that "substantial shares of U.S. adults believe that immigrants contribute to the country's economic growth, and offer important contributions to American culture."

This national tension plays out in Fremont, Nebraska. An influx of (frequently undocumented) migrants has kept the town's three meat-processing plants in business, as young American-born residents have left for higher-paying, less dangerous work. But the town also has a 15-year-old law requiring anyone renting a property to sign a declaration that they are legally present in the U.S.

And in Baltimore, the collapse of the Francis Scott Key Bridge on March 26 offers a tragic reminder of the role of immigrant labor in the U.S. economy. All six of the people who died in the collapse were migrants from Latin America doing road maintenance on the bridge.

"The kind of work he did is what people born in the U.S. won't do," a family member of one of the men told The Washington Post. "People like him travel there with a dream. They don't want to break anything or take anything."

 

 

This story was produced by The Marshall Project, a nonpartisan, nonprofit news organization that seeks to create and sustain a sense of national urgency about the U.S. criminal justice system, and reviewed and distributed by Stacker Media.