Texas Bill Would Make Federal Law ‘Inoperative’ In The State To ‘Repel’ Migrants

The Texas lawmaker trying to give Texas its own power to arrest and deport undocumented migrants said at a Wednesday hearing that he believes the state has “sovereign” authority to ignore federal law.

“The purpose of this bill is to assert the state of Texas’ constitutional authority to defend the sovereignty of our state and to protect our citizens,” Texas Rep. Matt Schaefer (R) told the state House’s State Affairs Committee.

Schaefer wrote HB20, a piece of legislation which would create a Border Protection Unit within Texas’s Department of Public Safety. If enacted, the unit would have the power to arrest, “repel,” and deport undocumented migrants seen making illegal crossings by members of the unit.

The proposal would flip the country’s constitutional structure on its head, legal experts say, allowing a state to override a responsibility that’s only ever been assigned to the federal government in the modern era: enforcing the border.

Schaefer said in an exchange at the hearing with a Democratic lawmaker that he believes border crossings amount to an “invasion” of Texas, which would allow the state to invoke a right to self-defense enumerated in the Constitution in cases of foreign invasion.

“What it does is, it says if you have a finding under Article 1, Section 10, at some point that self defense provision of the Constitution may make some aspect of federal immigration law inoperative in that moment because you’re in a different part of the Constitution,” Schaefer said, referring to the Constitution’s invasion clause.

Schaefer’s proposal is not just a far-flung messaging attempt by a far-right state lawmaker. Texas House Speaker Rep. Dade Phelan (R) has said that passing it is a “priority.” Elements of the bill — including the criminalization of undocumented border crossings at the state level — have parallel proposals in the state Senate.

The hearing took place on Wednesday, but Texas Republicans scheduled remarks around Schaefer’s border protection bill to come last. More than 200 people signed up to register their disapproval to the proposal via public testimony. Thanks to the scheduling, public testimony around HB20 did not begin until 10:01 p.m. Texas time, more than 9 hours after the hearing began.

State Rep. Rafael Anchia (D) pressed Schaefer to admit something that virtually all observers of the law — and Texas Attorney General Ken Paxton (R) — readily admit: the bill is an attempt to take advantage of the very conservative Supreme Court to potentially overturn an earlier, 2012 Supreme Court decision which affirmed that only the federal government can enforce federal immigration law.

Schaefer himself told a local reporter last month that he was “willing to incur” the cost of constitutional challenges to the law.

But at the Wednesday hearing, he demurred, saying only that Texas border patrol officers would “comply with federal law as written and interpreted by the courts.”

The size and scope of the Border Patrol Unit remains unclear; it’s possible that, as Paxton suggested, it’s all a stunt meant to “test” how far the current Supreme Court is willing to recompose federal immigration law.

Per a fiscal note released on Wednesday, the legislature estimated that hiring 100 “commissioned officer positions” would cost $67.5 million over the next two years; 1,000 officers would cost $678.3 million over the same time period. The U.S.-Mexico border extends 1,254 miles in Texas.

Under Operation Lone Star, Gov. Greg Abbott (R) has deployed state troopers and the state national guard to the border in a dramatically expensive show of force that, the American Immigration Council told TPM, costs the state roughly $2.5 million per week.

The state was able to cover budget shortfalls with COVID aid money, but now that that’s running low, lawmakers have cast the creation of a state-level border unit as a cost-effective solution.

The question of a solution to that problem remains completely unclear. Abbott justified Operation Lone Star as a response to supposedly lax enforcement by the Biden administration, which continues to face criticism from within the Democratic Party for maintaining Trump-era border enforcement policies.

For HB20, Texas GOP lawmakers are trying to circumvent questions about federal supremacy over state law by invoking the Constitution’s “invasion” language, saying that fentanyl and violence purveyed by Mexican drug cartels crossing the border constitutes an invasion of the state of Texas.

While that idea may exist on right-wing television networks, it’s far from reality. Gov. Abbott himself has so far refused to formally invoke the invasion clause.

Schaefer’s bill would include a legislative invocation of the clause, potentially setting up a legal showdown with the federal government.

Abbott’s office did not return TPM’s request for comment about the proposal.