Texas Doubles Down on a Cruel – and Likely Unconstitutional – Immigration Law
The Texas Legislature has embraced Governor Greg Abbot’s jihad against immigrants from Mexico and Central America. Its bill is “show your papers” on steroids.
(Welcome to another installment of Life Its Ownself. If you enjoy reading it, please let me know by 1) hitting the Like button at the bottom, 2) subscribing to this newsletter, and 3) recommending it to others. Also, feel free to comment below. I’d love to hear your thoughts.)
But first, your moment of Zen …
(Former Trump lawyer Jenna Ellis pleads guilty on October 24 in the Georgia election interference case. See the end of this newsletter for the latest developments.)
Tuesday, November 14, 2023, 1:00 p.m.
Texas’s pathological – and possibly unconstitutional – immigration bill.
You may recall that during the last special session the House debated three immigration bills into the wee hours of the morning. The battle was heated and emotional, pitting Republicans who believed the state must do more to address illegal immigration against Democrats who believed the bill’s approach was fundamentally racist. The Democrats offered dozens of amendments to moderate the bill’s worst provisions, and when a GOP representative moved to cut off consideration of many of them, a brief scuffle broke out on the floor. The bills did not ultimately pass, however, due to squabbling between the House and Senate.
Today the Texas House will consider Senate Bill 4, which is substantially similar to last month’s bill. Senate Bill 4 would make it a crime to have entered the state illegally:
Sec. 51.02. ILLEGAL ENTRY FROM FOREIGN NATION. (a) A person who is an alien commits an offense if the person enters or attempts to enter this state directly from a foreign nation at any location other than a lawful port of entry.
Importantly, this law is not only prospective. It also applies to a person who was ever denied admission to or excluded from the U.S. and is nevertheless here:
Sec. 51.03. ILLEGAL REENTRY BY CERTAIN ALIENS. (a) A person who is an alien commits an offense if the person enters, attempts to enter, or is at any time found in this state after the person:
(1) has been denied admission to or excluded, deported, or removed from the United States; or
(2) has departed from the United States while an order of exclusion, deportation, or removal is outstanding. (emphasis added)
SB 4 also requires that any person convicted under this law must be deported:
On a person's conviction of an offense under Chapter 51, Penal Code, the judge shall enter in the judgment in the case an order requiring the person to return to the foreign nation from which the person entered or attempted to enter.
The courts don’t even have to wait for a conviction:
(b) The judge in a person's case at any time after the person's appearance before a magistrate under Article 14.06 or 15.17 may, in lieu of continuing the prosecution of or entering an adjudication regarding an offense under Section 51.02 or 51.03, Penal Code, dismiss the charge pending against the person and issue a written order in accordance with Subsection (c).
(c) A written order authorized by Subsection (a) or (b) must discharge the person and require the person to return to the foreign nation from which the person entered or attempted to enter,
Not to put too fine a point on it, but the State of Texas is now getting into the immigration enforcement business, once reserved to the federal government under the Constitution. This is the “show your papers” law on steroids.
Democrats have complained that this bill would lead to racial profiling, the separation of families, and the disruption of immigrant communities across the state. The Republicans must have agreed, because the bill has provisions immunizing state and local law enforcement officials from the civil or criminal consequences of doing just that.
The debate today will likely be spirited, a replay of last month’s battle royale. Democrats will offer amendments and Republicans, animated by their base’s frothing-at-the-mouth animus towards immigrants, will toe the line and protect the most objectionable parts of the bill.
Brian Birdwell takes a lonely stand for the Constitution.
After Greg “Tough Guy” Abbott convened the fourth special session on November 7, the Senate wasted no time in passing its version of the anti-immigrant bill two days later. The only hitch is its get-along was a speech by Senator Brian Birdwell, lamenting that the Senate had strayed outside its constitutional boundaries.
Brian Birdwell is no squishy RINO (although he will surely be accused of that now). On September 11, 2001, he was in the E-Ring of the Pentagon when American Airlines Flight 77 struck the building, the nose only 20 yards from where he was standing. It took four years and 39 surgeries for him to recover. He was first elected to the Senate in 2010 and represents a deep-red district in and around Waco. He’s chaired the Senate Border Security committee and the committee that wrote the rules for Ken Paxton’s recent impeachment. He’s part of Dan Patrick’s Senate leadership team, if Dan Patrick can be thought to have such a thing.
Referring to the Constitutional provision (in Article I, Sec. 8) that Congress shall “establish an uniform Rule of Naturalization,” Birdwell said, “That clause specifies all power and responsibilities for immigration is delegated to the federal government … We are setting a terrible precedent for the future by invalidating our obedience and faithfulness to our Constitution. President (Joe) Biden’s failure to obey his oath does not compel us to violate ours.”
Birdwell’s speech, as you might imagine, fell on deaf ears in the Texas Senate. He may face retaliation from Lite Guv Dan Patrick for his temerity. He will almost certainly see his words read back to him in some ACLU-type lawsuit to overturn the bill if it passes.
But give credit where credit is due: the Texas proposal is probably the most virulently racist and anti-immigrant state law in the nation. Combined with an additional $1.4 billion in state funding for Operation Lone Star and a bill, passed during the third special, enhancing penalties for the human trafficking of immigrants (or, as Texas law charmingly refers to them, “aliens”), Texas has staked out its position as the Number One place immigrants should not go.
Our GOP legislators are simply doing what their voters want. A 2022 Texas Politics Project poll showed 61% of Texas Republicans think there’s too much legal immigration, and an August 2023 poll showed 73% support putting razor wire and saw-toothed buoys in the Rio Grande.
The Lege’s immigration madness reflects a national trend.
Texas’s antipathy to immigrants reflects a national trend, particularly among Republicans. A July Gallup survey reported that 73% of Republicans think immigration should be decreased, the highest level since 1995, and 41% of all Americans agreed.
These attitudes are reflected in GOP rhetoric going into the 2024 campaign season. Last summer, all but one GOP presidential contender supported building a wall along the Mexican border, even though many of them had mocked the idea when Donald Trump first proposed it in 2015. (The lone holdout, Texan Will Hurd, dropped out of the race in early October.)
The Orange Mad King is, of course, the official spokesbot of the Republican Party on immigration. Last month, he said undocumented immigrants were “poisoning the blood of our country.” In his typical soothing tones, he elaborated:
Nobody has any idea where these people are coming from, and we know they come from prisons. We know they come from mental institutions and insane asylums. We know they’re terrorists. Nobody has ever seen anything like we’re witnessing right now. It is a very sad thing for our country. It’s poisoning the blood of our country. It’s so bad, and people are coming in with disease. People are coming in with every possible thing that you could have.
Welcome to America, immigrants! As fact-free, racist, and offensive as these comments are, they reflect not just the unleashed id but the official policy of the Republican Party. Over the years Trump has had a profound effect on public views on immigration: Trump’s rhetoric was echoed by the El Paso Walmart gunman who massacred 22 people in 2019, and an academic study has shown it contributed to a significant decline in crowdfunding for minority entrepreneurs.
To be fair, America’s immigration is a mess now. The border is overwhelmed in many places, and Congress has not funded the necessary border patrol agents and asylum processing infrastructure to handle, much less reduce, the logjam. Bipartisan efforts to address our immigration issues have languished for a generation. There are no incentives for congresscritters, particularly those from red states, to actually try to solve the problems.
This has created the vacuum into which Greg Abbott and the Texas Legislature have wandered. Abbott and the Lege have selected a dark and thorny path moving forward.
They said the quiet part out loud … You may recall that former Trump lawyer and walking case study for mediocrity Jenna Ellis copped a plea deal last month with Atlanta District Attorney Fani Willis. As part of the deal, she taped a video “proffer” of what she would say on the stand. Jenna’s story was, how you say, interesting:
In the video of prosecutors' Oct. 23 proffer session with Ellis, she said that one of Trump's top White House aides, Dan Scavino, allegedly told her "in an excited tone" at a White House Christmas party weeks after the 2020 election that "the boss is not going to leave under any circumstances."
Ellis specifically noted during the proffer session that the alleged comment from Scavino, who worked for Donald Trump for decades at the Trump Organization before joining his first presidential bid, came in response to her apologizing over the lack of success with their election challenges in court, culminating with a Supreme Court loss that indicated their ability to challenge the election "was essentially over."
"And he said to me, in a kind of excited tone, 'Well, we don't care, and we're not going to leave,'" Ellis said of the alleged Dec. 19 conversation with Scavino. "And I said, 'What do you mean?' And he said 'Well, the boss', meaning President Trump -- and everyone understood 'the boss,' that's what we all called him -- he said, 'The boss is not going to leave under any circumstances. We are just going to stay in power.'"
Ellis continued, "And I said to him, 'Well, it doesn't quite work that way, you realize?' and he said, 'We don't care.'"
Check out the video. It must be seen to be believed.
Scarier and scarier. Where are we going with this? Abutt and the rest of his ilk have got to go. We just can't pull the covers over our heads and pretend it isn't happening, it is. We've got to write and call and vote D every chance we get and pray 🙏 that gets us somewhere. Humans deserve to be treated as such. I want to be treated fairly when I have to flee to Canada 🇨🇦.
Great coverage Deece!