Texas law making illegally crossing US-Mexico border into state a deportable offense would 'reshape' immigration law

Texas’ SB 4, an immigration law passed in 2023 that allows the state to deport illegal border crossers, remains tied up in courts. Legal experts have argued that if the state is successful in arguing its case, it could reshape immigration law across the country.

State lawmakers and officials have said that the Biden administration has failed to fulfill its duty in protecting the state, and that Texas thus has a right to defend itself. The law makes it a misdemeanor to cross the border illegally, allowing Texas peace officers to arrest those. State magistrate judges can order the person to leave the US to Mexico in place of continuing prosecution. Repeat offenders can be charged with a second-degree felony, which is punishable by up to 20 years in prison.



The Texas Tribune reported that legal scholars have argued the law could create two immigration systems, a federal one and a Texas one, "and open the door for other states to write their own immigration laws."

Law professor and director of the Immigration Clinic at the University of Texas at Austin Denise Gilman told the outlet that if the law is upheld, "there’s just going to be a mess." She questioned what would happen if federal and state authorities go after the same person under different laws, such as the federal government wanting to deport a person to their place of origin and the state wanting to deport them to Mexico.

Director of immigration policy at the Niskanen Center Kristie De Pena claimed that allowing states to criminalize illegal immigration would result in "racial profiling" by police and the accidental detention of US citizens.

"We're gonna see a lot more pressure on local law enforcement to handle things outside of their general jurisdiction when they are already struggling," she said.

Constitutional law scholar at George Mason University Ilya Somin claimed that if Texas succeeds in court in their arguments that illegal immigration is an invasion, other states would pass similar laws and would be able to declare war.

"That suggests an ‘invasion’ must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated," she wrote.

Texas has argued in court that the law does not conflict with existing federal law and that the state, which shares the longest portion of the border with Mexico compared to any other border state, is in fact being invaded.

Brian Phillips of the Texas Public Policy Foundation said, "You do obviously have entry into our territory that's not theirs. You have them violating laws, and then you have them using hostile means, whether it's violence or threats of violence, or coercion or other nefarious approaches. There's more than enough evidence to meet the legal definition of invasion."

Somin said the argument has "sweeping and dangerous implications." he added, "What Vladimir Putin is doing to Ukraine is an invasion. What Hamas did to Israel is an invasion. Migrants crossing the border in search of opportunity is not an invasion."

The lawsuit against SB 4, launched by the Department of Justice, is currently before a panel of judges from the US Fifth Circuit Court of Appeals. The panel will decide whether to overturn a lower court’s decision stopping the law from taking effect. Legal experts expect the case to end up before the Supreme Court.