Texas Patrols Its Own Border, Pushing Legal Limits

AUSTIN, Texas — Four C-130 military transport planes towered over the tarmac at Austin’s international airport, idling with the doors open as the sun rose over a news conference called by the Texas governor, Greg Abbott.

As Mr. Abbott began speaking on Monday from a lectern emblazoned with the words “Securing the Border,” about 200 soldiers from the National Guard hustled onto the planes.

“They will be deployed to hot spots along the border to intercept, to repel and to turn back migrants who are trying to enter Texas illegally,” the governor said, barely audible over the roar of the engines. Then he turned to watch the planes take off.

For two years, Texas has engaged in a multibillion-dollar attempt to arrest and deter migrants who cross into the state from Mexico, deploying helicopters and drones, National Guard troops patrolling the border in camouflage and state troopers racing down highways in black-and-white SUVs. The state has bused thousands of migrants to East Coast cities like New York and lined the reedy banks of the Rio Grande with concertina wire.

But the number of crossings into Texas has only increased.

Now, a new surge of migrants is already arriving at the U.S. border with the expected end on Thursday of a public health measure, known as Title 42, that for the past three years had allowed the government to rapidly expel a large number of migrants who arrived at the border.

Texas is doubling down on its response, not only sending more soldiers and police officers to the border but also pushing legislation that would impose new state penalties on migrants and human smugglers, as well as create a border police force and “border protection courts” to enforce state controls.

Mr. Abbott, a Republican, blames the Biden administration for undermining his state’s efforts so far to limit the number of migrants arriving from Mexico.

“If we were acting in isolation, we would have secured the border,” he said. “While Texas is doing everything possible to stop people from crossing the border, the president of the United States is setting out the welcome mat.”

The legislative actions, some of which were expected to pass the State House this week, would expand and make permanent elements of the border enforcement program that Mr. Abbott unveiled in March 2021 known as Operation Lone Star. Through the program, Mr. Abbott has pushed the envelope of what the law allows, using his power as governor to send the National Guard and state police to the border, and employing state trespassing laws to arrest migrants when they cross private land.

But states cannot enforce federal immigration law — that is up to the federal government — and Mr. Abbott has thus far resisted calls from some far-right conservatives to declare that Texas is being invaded, order the state police to arrest any migrants found in Texas and return them over the border to Mexico.

For now, when National Guard troops or state officers encounter migrants at the border, they most often turn them over to U.S. Border Patrol agents, who take them into custody under federal law, a process that allows many to stay and pursue asylum claims.

The bills now before the State Legislature — particularly a measure that would make it a state crime for migrants to cross from Mexico into Texas — would mark a big step toward a more direct state role in immigration enforcement and could run afoul of current constitutional precedent, several legal experts said.

Civil rights groups, immigrant advocates and Democratic lawmakers have opposed the bills as a cruel distraction from the need to provide aid to the desperate people who are making their way to the United States after fleeing poverty and violence. “The real issue at the border is that it’s a humanitarian emergency so we need a humanitarian response,” said Alexis Bay of the Texas Civil Rights Project. “We’ve seen all sorts of deterrence policies but people are still coming to the border.”

On Tuesday, the State House in Austin had been scheduled to discuss several big pieces of border legislation, including H.B. 7 and H.B. 20, which would create the new system of border courts and border police. Democrats delayed consideration of the bills for much of the day.

Some Texas officials, including the attorney general, Ken Paxton, have expressed an eagerness to take the question of state jurisdiction to court in the apparent hope that more conservative justices on the Supreme Court may be prepared to give broader authority to states like Texas to enact their own immigration laws.

Mr. Paxton said as much during a Senate committee hearing in March, when he told lawmakers that the state should set out to test the landmark 2012 case in Arizona in which the U.S. Supreme Court found that state enforcement of immigration law impermissibly intruded on federal authority. “We should test to see if the states can protect themselves, given the circumstances we’re in that we’ve never been in before,” Mr. Paxton said.

A particularly direct challenge to existing law would come from one bill, already passed in the State Senate, that would make it a violation of state law for someone who is not an American citizen to cross into Texas from a foreign country other than at a legal port of entry — something that is already a violation of federal law.

“It’s hard to imagine a more stark intrusion, a more direct intrusion by a state on what is traditionally thought of as the realm of federal immigration law,” said Pratheepan Gulasekaram, a law professor at Santa Clara University in California who has studied state efforts to regulate immigration.

In the short term, Texas has been readying itself for the end of Title 42 by creating teams of soldiers who can rush to areas where a large number of migrants are arriving. That has been the approach in cities like El Paso, where officials said soldiers had been placing miles of concertina wire near the border and providing an increased presence to discourage crossings.

“The surge is coming before Title 42 ends, is what is happening,” said Maj. Sean Storrud, who commands hundreds of National Guard soldiers stationed in El Paso.

Major Storrud — a high school math teacher from Marlon, Texas, when not called up by the Guard — said that what had been a mile-long barrier of concertina wire back in December had grown to more than 17 miles of wire, anti-climbing barrier and shipping containers. “It is a mixed media fence,” he said. “The idea is to divert them to the legal points of entry.”

But in many places, migrants have created holes allowing them to pass through the sharp wire, sometimes in full view of National Guard troops. The additional troops who were among those who flew into El Paso from Austin on Monday will in part be tasked with watching the fence and making sure no one tries to cross, Major Storrud said.

“The c-wire is only as effective as the soldiers who are guarding that wire,” he said, using an abbreviation for concertina wire.

If the troops flying out of Austin were sent on a familiar mission, they had at least been given a new name — the “Texas Tactical Border Force” — one that echoed the name of the state-level border police force being considered by Republican leaders in the State House.

The bill to create a separate “Border Protection Unit” within the Texas Department of Public Safety has been a priority of the House speaker, Dade Phelan. It has raised concerns among immigrant-rights advocates, because an initial draft would have allowed the new unit to deputize ordinary citizens to participate in operations, giving the color of state authority to private armed groups that have long operated in Texas.

Mike Vickers, who runs the Texas Border Volunteers, said his group had been patrolling on private land to act as lookouts and report suspicious activity to law enforcement for 16 years.

“We think it’s a great idea,” he said of the bills. He said opposition to the legislation was coming from “all these Democrats” who believed it would mean “a bunch of gringos out there wanting to arrest anyone with brown skin. It’s so stupid. But that’s kind of their mind-set.”

Last month, Mr. Vickers appeared at a rally in Austin along with the musician Ted Nugent and other conservative figures to support the legislation and urge Mr. Abbott to more directly challenge the federal government on immigration enforcement.

“It remains to be seen how this civilian unit will operate,” Mr. Vickers said. “But if they can coordinate it with law enforcement, I think it will be great.”