Editor’s Note: Lawrence Downes is a writer and editor in New York. The opinions expressed in this commentary are his own. View more opinion on CNN.
It’s been a week of whiplash for people wondering whether Texas is going to be getting its own foreign policy. That is, whether it will be able to enforce SB 4, the extreme anti-immigration law that Gov. Greg Abbott signed last December. It empowers the state’s police and judges to arrest, lock up and punish people suspected of crossing its borders illegally.
The constitutional questions raised by SB 4 are kicking around the federal courts. Can Texas turn a federal civil immigration offense into a state crime? Last month a district judge said no, then the 5th Circuit Court of Appeals said yes. Supreme Court Justice Samuel Alito said no and then no again, but on Tuesday the Supreme Court said it wouldn’t stand in the appeals court’s way, so yes. But later that night a three-judge panel of the appeals court said, wait a minute, no. They heard arguments by Zoom on Wednesday.
For now the answer is no, Texas can’t throw out the Constitution and more than a century of settled law that says control over immigration belongs exclusively to the federal government. But whatever the 5th Circuit and Supreme Court decide next, the question for President Joe Biden is what to do now.
Biden is the one who has been vilified for not stopping what Abbott, former President Donald Trump and others falsely call an immigrant “invasion.” Despite his low approval rating on the issue, Biden remains the one who is actually responsible for immigration policy while demagogues like Abbott and Trump denigrate immigrants with violent and dehumanizing language and whip themselves and the public into a nativist frenzy.
If Texas is going to act this way, Biden should step up and surge resources to the border — not more troops, but Department of Justice investigators and civil-rights lawyers, to be ready to defend immigrants and brown-skinned Texans (and Arizonans and New Mexicans passing through) against the profiling and other civil-rights violations that are sure to follow in SB 4’s wake. He should do more to protect asylum seekers at the southern border, who deserve safety and due process.
And he should fulfill a campaign promise and pull the plug on any partnerships that Texas sheriffs’ and police departments have with the Department of Homeland Security through the federal 287(g) program, which deputizes local law enforcement for immigration duties. Texas, of all places, should not be the Biden administration’s teammate in these increasingly chaotic borderland games.
Justice Sonia Sotomayor was right when she warned in dissent this week that SB 4 “will upend the longstanding federal-state balance of power and sow chaos.” The law, she said, threatened to “disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking.”
Even without SB 4, Abbott has made Texas a chaos agent. He has been chewing up public lands for a DIY border wall and illegally fortifying the Rio Grande with shipping containers, razor wire and floating saw blades. He has used state guard troops to seize a public park in the border city of Eagle Pass, creating what extremists are calling a “new Alamo” and keeping out the Border Patrol, with tragic results.
The threat in Texas of armed vigilantism from people fired up by dehumanizing language and warnings of an “illegal invasion” is real. Rhetoric became reality in 2019 in El Paso, when a gunman who had swallowed those lies shot nearly 50 people at a Walmart, killing 23, nearly all of them Mexican-Americans. The FBI said it disrupted a militia plot to “go to war” on the Texas-Mexico border just last month.
If the courts end up giving Texas a green light to go its own way on immigration — which is, as District Judge David Ezra said when he first blocked SB 4, “a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War” — it seems all too clear that chaos and violence are likely to follow. As The New York Times reported on Wednesday, Republican copycats in other states are already lining up to go rogue on immigration, too.
Biden’s own immigration message has gotten much harsher lately as he seeks a second term. He may not suggest that all immigrants are dangerous invaders — as crime data and evidence resoundingly show that they are not. But he has been trying to get the Republicans to join him in getting tough. His message to the GOP and the country is: Yes, let’s definitely crack down on immigrants in a big way and hire more Border Patrol agents and seal that border shut.
Biden even made an awkward and disturbing reference in his State of the Union address to Laken Riley who, in his words, had been “killed by an illegal.” Riley, a 22-year-old nursing student at the University of Georgia, was fatally beaten last month. A suspect from Venezuela, apparently an undocumented immigrant, has been charged in her death.
It was painful to see. Biden regrettably took the bait of the Republican troll Rep. Marjorie Taylor Greene of Georgia, who had demanded before the speech that he “say her name.” He accepted the challenge and essentially did what she ordered him to do.
Biden did the country no favors with his ugly — even if accidental — word choice. If he truly means well — if he still believes in the spirit of American welcome and tolerance that he evokes in his speeches, if he still holds any of the strongly pro-immigrant convictions that he voiced during his 2020 campaign — then he should show it.
The rap on Biden from Abbott, Trump and their MAGA allies is that he refuses to use his executive power to fix immigration. They have been trying to bully him into ending asylum and taking other harsh actions on his own. His answer should be: Very well, then. Let SB 4 be the line in the sand, to steal a phrase from Texas’ Alamo mythology. He should step up to stop Texas and any other state from turning immigration into a dangerous free-for-all, defend immigrants from Abbott’s brutal recklessness and reaffirm federal sovereignty over a sound and just immigration system.
