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Americans have had many different opinions about immigration over the past several hundred years; however, it is hard to imagine a time when border security was as divisive a topic as it is now. One recent instance when immigration policy has made headlines is surrounding a state law that was recently passed in Texas. This law, SB 4, allows Texas police officers to question and arrest people whom they suspect crossed the southern border illegally. That being said, this law has undergone what University of Texas at Austin law professor Steve Vladeck called “judicial whiplash”. Judicial examination of SB 4 has resulted in a back-and-forth battle over whether the law can take effect, leaving many Americans confused about the actual status of the law’s provisions. While this ever-changing situation demonstrates the controversy surrounding immigration policy, it is also one of many instances where the debate over immigration has undermined Americans’ trust in their government to function properly.

SB 4

In 2023, Texas state legislators approved SB 4, making it a state crime (Class B misdemeanor) to cross the border between Texas and Mexico at an unofficial entry point. SB 4 allows Texas police to question and arrest anyone whom they believe has illegally crossed the border. If a suspect is deemed guilty, they could face up to six months in jail as a first-time offender. 

SB 4 targets migrants who have recently crossed the border. Texas’ statute of limitations prohibits legal proceedings for misdemeanors that have occurred at least two years prior. Additionally, police would not be able to question or arrest migrants in schools, places of worship, health care facilities, and facilities that provide forensic exams for sexual assault survivors. 

The Department of Justice and advocate groups claim that SB 4 encroaches on the federal government’s power over immigration laws and would lead to racial profiling by police officers. Texas legislators and supporters of this law say that it is necessary under states’ rights because the federal government is not doing enough to address immigration concerns. Although the state claims that SB 4 was designed to be consistent with federal immigration law, many critics assert that this state law is an overreach of power and conflicts with the Supreme Court (SCOTUS) precedent that has historically given unified power over immigration to the federal government.

“Judicial Whiplash”

SB 4 has undergone constant legal scrutiny by various parties. In December 2023, several groups, including the American Civil Liberties Union (ACLU) of Texas and the Texas Civil Rights Project, sued Texas over this law on behalf of immigrant rights groups. Soon after, the Department of Justice filed a lawsuit against Texas, claiming that SB 4 interfered with the federal government’s jurisdiction over immigration laws. 

In February 2024, SB 4 was blocked by U.S. District Judge David Ezra under the premise that it detracted from the federal government’s unified immigration policies. However, the Texas Attorney General appealed the decision, and the U.S. 5th Circuit Court of Appeals overturned Ezra’s decision. This led the Biden administration to appeal the 5th Circuit Court decision to the Supreme Court. SCOTUS temporarily blocked the law until March 18th while it considered the Biden administration’s request. 

On March 19th, SCOTUS allowed SB 4 to go into effect in United States v. Texas, although it did not rule on the law’s constitutionality. The Court sent SB 4 back down to the 5th Circuit Court of Appeals for further ruling but permitted the law to be enforced while the judges heard the case. Then, several hours after the SCOTUS decision was released, the lower court blocked SB 4 from going into effect during the trial, which was set to take place the following day. While oral arguments were given on March 20th, the 5th Circuit Court of Appeals has yet to issue a ruling on SB 4 as of May 4th, 2024.

Immigration in Congress

Although the contested nature of immigration is clearly visible in the legal battles involving SB 4, those are not the only recent instances where border security has made headlines. In February, the Republican-led House of Representatives impeached Department of Homeland Security (DHS) Secretary Alejandro Mayorkas over his immigration and border policies. This unprecedented move only passed by one vote on its second attempt but represents the partisan divide over immigration that is causing increased tangible consequences for policymakers. Furthermore, the potential misuse of impeachment power to push partisan politics is concerning for the future of Congress and the U.S. government as institutions. 

At the same time, immigration policy was one of the biggest challenges for Congress as it worked to pass government spending bills in March. While the first set of appropriations bills was able to pass without too much difficulty, the second set of bills that included funding for the DHS posed a tougher challenge for lawmakers. Concerns that partisan division over immigration could prevent legislators from reaching an agreement and cause a government shutdown were prevalent, though eventually avoided. 

In both of these cases, lawmakers’ positions on immigration policy have contributed to dysfunction and chaos in Congress. These events also affect the broader federal government and the nation as a whole, demonstrating the visible role of immigration and border security policy in American politics.

An Uncertain Future

Immigration is evidently an issue that pervades all three branches of the federal government. Increasingly, it is becoming a topic that impacts the ability of the federal government to function adequately. When the court system repeatedly overturns decisions on immigration law, one party is impeaching a Cabinet secretary over his immigration stance, and disagreement over border control policy is threatening to shut down part of the government, policies that benefit the people are not being passed and implemented. Therefore, it becomes difficult for Americans to trust their leaders to overcome their differences and govern for the people. Similar to the future of SB 4, the future outcomes of immigration policy as a whole in the U.S. are uncertain. However, the one thing that appears certain at the moment is that immigration policy will continue to be a divisive and defining issue in American government and policy.