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Recent Anti-Immigrant State Laws Break New Grounds of Illegality
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Recent Anti-Immigrant State Laws Break New Grounds of Illegality

Courts must continue to block unconstitutional, overreaching, and dangerous anti-immigrant state laws that intrude into federal authority.

Photo shows groups of people sitting on sand behind a large fence, with white government trucks nearby
Migrants wait to be processed on the Ciudad Juarez side of the U.S.-Mexico border in El Paso, Texas, on September 21, 2023. (Getty/Brandon Bell)

From Texas to Iowa to Oklahoma and beyond, these Republican-led states are enacting immigration enforcement laws that are unquestionably illegal. Each of these states’ measures claims to assert state authority to regulate immigration and decide core questions such as who may be allowed to enter or remain in the country, who may be required to leave, and how such decisions are to be made.

Proponents of these laws have justified this unlawful usurpation of exclusively federal authority based on the false premise that the Biden administration has failed to enforce the nation’s immigration laws. Courts must reject these unconstitutional power grabs just as they have rejected similar efforts in the past.

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New state bills double down on unconstitutional provisions in previous anti-immigrant measures

We’ve been here before.

Over the years, anti-immigrant measures championed by state and local elected officials seeking to capitalize politically have sprung up and spread like wildfire, only to be struck down by federal courts—including the U.S. Supreme Court—for impermissibly intruding into an area reserved exclusively for the federal government. This was true of state laws enacted nearly 15 years ago in Arizona, Alabama, and Georgia—to name just a few—and local ordinances enacted even earlier in places such as Hazleton, Pennsylvania, and Farmers Branch, Texas.

Perhaps what is most remarkable is that these latest state bills make no attempt to remedy the legal infirmities of the earlier efforts, but either repeat them or intrude even more egregiously into areas preempted by federal law. For example, in May 2023, Florida Gov. Ron DeSantis (R) signed into law S.B. 1718, which, among other things, made it a state crime to knowingly and willfully transport into the state of Florida an individual who entered the United States unlawfully and without inspection. That portion of the law was recently enjoined by a federal judge nominated to the bench by former President Donald Trump, who cited two previous decisions by the 11th Circuit Court of Appeals establishing “unambiguously that only the federal government—through the [Immigration and Nationality Act]—can regulate the unlawful transportation of [noncitizens].”

The Texas and Iowa laws push the envelope even further. In December 2023, Texas enacted S.B. 4, a law that gives state officials unprecedented powers to arrest and prosecute people suspected of having illegally entered the country or reentered after having previously been denied admission, removed, or the like. In addition to paving the way for rampant racial profiling that will have a disproportionately chilling effect on the states’ nonwhite residents, this largely replicates provisions in federal criminal law that already prohibit illegal entry and reentry after removal. The Texas law additionally authorizes state court judges to order such noncitizens to return to the country from which they entered, whether in exchange for the dismissal of criminal charges or as part of a judgment of conviction; empowers state personnel to carry out such returns (i.e., removals) by transporting noncitizens to a port of entry; and makes it a felony for a noncitizen to refuse to comply with such an order. Iowa’s copycat law enacted months later replicates most of these provisions.

Under the supremacy clause of the U.S. Constitution, the Constitution and federal laws are “the supreme Law of the Land.” The Texas and Iowa laws are unconstitutional because they create a new scheme for removing people from the country that interferes substantively and procedurally with federal immigration law. Additionally, they grant state officials the independent authority to take actions that federal law only permits in limited circumstances and under federal supervision. Finally, the laws intrude in various ways into areas that have been entirely occupied by a complex statutory and regulatory system created by the federal government, which has the “sole and exclusive” authority in this space.

The provision in these recent state laws that shows the greatest disdain for federal authority over immigration is the one that specifically prohibits state courts from delaying prosecutions while the federal government is actively engaged in deciding whether an individual is entitled to remain in the country with a lawful immigration status. This means that a state court would have to proceed with a prosecution that could result in an individual being transported by the state to a port of entry and forced to leave the country, or face a second prosecution for refusing to comply, even if the federal government ultimately were to conclude that the person is not, in fact, removable or is otherwise entitled to remain here. For example, a Texas or Iowa state judge could effectively remove a person from the country even as the federal government is making the decision that the individual is actually a lawful permanent resident who is not subject to removal or that the individual has a well-founded fear of persecution and is entitled to asylum in the United States. Additionally, were Texas or Iowa to facilitate the forced removal of a person to a country where they would more likely than not be persecuted or tortured—in this case, the country from which the person entered—that would violate U.S. law and obligations under the Convention Against Torture.

Allowing a state to assert independent authority to remove noncitizens from the country would be overly intrusive even in situations where the federal government were to conclude that such individuals are not entitled to any immigration relief. A little more than one year ago, the Supreme Court reaffirmed its clear rule that for reasons related to “normal domestic law enforcement priorities” and foreign policy, it is the executive branch of the federal government that “retains discretion over whether to remove a noncitizen from the United States.” That case involved a different, failed attempt by the state of Texas to unconstitutionally usurp federal immigration enforcement prerogatives.

False characterization of migration as ‘occupation’ furthers dangerous narrative that fuels violence

Oklahoma’s law, enacted in late April 2024, prohibits noncitizens from willfully and without permission entering and remaining in the state without first obtaining legal authorization to enter the United States, but it does not purport to authorize the state to remove people from the country, nor does it include a prohibition on holding state prosecutions in abeyance. Nevertheless, by calling the new criminal offense outlined in the law an “occupation”—a term associated in international humanitarian law with a foreign army’s hostile invasion of another country’s territory, as Russian has done in parts of Ukraine, for example—the law furthers a dangerous and baseless narrative that has been cited as motivation in multiple large-scale, extremist acts of violence, including the one in which a gunman in El Paso, Texas, targeted Latinos and killed 23 people.

The ultimate goal of the proponents of these laws may well be … to invite the Supreme Court to overturn its 2012 precedent in the case of Arizona v. United States, in which it struck down key provisions of an anti-immigrant Arizona law that ran afoul of the supremacy clause.

Conclusion

Given existing legal precedent, it is no surprise that a federal trial court already blocked enforcement of Texas’ law and the 5th Circuit Court of Appeals appears poised to affirm that ruling. Federal judges in Iowa and Oklahoma similarly blocked enforcement of those two states’ laws. The ultimate goal of the proponents of these laws may well be what Texas Gov. Greg Abbott (R) explained when he signed S.B. 4 into law: to invite the Supreme Court to overturn its 2012 precedent in the case of Arizona v. United States, in which it struck down key provisions of an anti-immigrant Arizona law that ran afoul of the supremacy clause. Indeed, after quoting Arizona in the first sentence of its concluding paragraph for the proposition that “the State may not pursue policies that undermine federal law,” the Oklahoma judge who was nominated by former President Trump writes: “Should more explicit guidance foreclose that conclusion, this Court will listen.”

In the meantime, these states are enacting legislation that openly defies the limits of their authority, spreads fear and confusion throughout their communities, and wastes resources crafting and defending patently unconstitutional legislation. Courts should continue to rule swiftly against these laws and prevent them from taking effect.

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Author

 (Tom Jawetz)

Tom Jawetz

Senior Fellow

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Immigration Policy

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