Nearly a year after Texas enacted a law giving state and local police officers more power to arrest illegal immigrants who enter the state, Republican lawmakers in at least 11 states are seeking similar measures to capitalize on the centrality of immigration in the 2024 presidential election.
The fate of the proposals is still up in the air. Six have already been enacted or are under consideration, and Louisiana is expected to sign a bill into law as early as next week. In a federal appeals court case, Texas is defending the law, arguing that illegal immigration is a form of invasion and that it would give the state expanded power to protect its borders. Federal courts have previously ruled that the constitutional definition of invasion is limited to military attacks.
States have tested the limits of their power on immigration issues before, but lawyers and legal scholars said this year’s efforts were accompanied by the equivalent of a public relations campaign.
In campaign speeches, political ads and on Capitol Hill, Republicans are increasingly repeating the words of former President Donald J. Trump, who called the increase in migration at the southern border an “invasion.” President Biden, who has faced pressure from both Republicans and Democrats to address the border issue, signed an executive order this month restricting asylum and could take further steps as soon as next week.
The bill, expected to be signed by Louisiana Republican Gov. Jeff Landry, includes a provision that would allow him and his attorney general to enter into a deal with Texas to address border security. Landry has already met with Texas Republican Gov. Greg Abbott to send Army National Guard troops from Louisiana to the border with Mexico.
Sen. Valerie Hodges of Louisiana, who authored the bill, joined other Republicans in calling Biden’s recent actions “too little, too late,” and said in an interview that state actions like hers were essential because the Biden administration has failed to enforce immigration law.
“The federal government isn’t helping us,” she said. “They’re doing the opposite. They’re opening up the doors and letting more people in.”
In Arizona, Republican lawmakers put a Texas-style bill on the ballot this month after the state’s Democratic governor, Katie Hobbs, vetoed a similar bill, and in Michigan, another battleground state where immigration has galvanized Trump’s base, Republican state lawmakers from the far-right Freedom Caucus have introduced yet another bill.
Michigan Rep. James DeSana said he and other authors of the bill decided to introduce it after visiting Del Rio and Eagle Pass, Texas, but believes the bill will likely stall in the Democratic-controlled Legislature.
DeSana, a Republican who campaigned against “sanctuary” cities when he took the seat from a Democrat in 2022, stressed that he is not opposed to increasing legal immigration or temporary legal pathways for workers to enter the U.S. But he remained adamant that the situation on the southern border has become an invasion.
“A lot of people are migrating to cities,” he said in an interview. “There’s not enough housing. Police are overstaffed. There’s crime.”
Democrats, immigrant rights groups and some legal scholars said the bill could devastate states’ economies, lead to racial and ethnic profiling and reinforce a dangerous mindset that sees undocumented immigrants as hostile invaders and foreigners. The Arizona bill stirred up memories of police harassment and anti-immigrant sentiment among young Latinos and immigrant rights activists who have previously successfully resisted such restrictive immigration laws.
On the floor of the Louisiana State Capitol in April, Sen. Lois Duplessis, a Democrat from New Orleans, called on state and national lawmakers to reject language that paints undocumented immigrants as if they “came from outer space and are trying to force us all out of our homes.”
In an interview, he said it’s unlikely that states with fewer resources can do a better job than the federal government on immigration, a complex issue that neither party has addressed for years. “The federal government is just pushing an ideological agenda rather than addressing the real issues of public safety,” he said.
Texas has experimented with pushing the boundaries of its power on important non-immigration issues, such as restrictions on abortion and gender reassignment, but its activism has garnered the most attention on immigration.
Abbott’s move to bus migrants to Democratic cities like New York and Chicago was initially criticized by immigrant rights groups and progressives for treating the migrants as political pawns, but it has since raised concerns, including among Democrats, that local and state governments may not be able to handle the record increase in migrants under the Biden administration.
Supporters of state measures argue that even though the power to regulate immigration and naturalization rests with Congress, a 1996 federal law to curb illegal immigration strengthened states’ ability to assist in immigration enforcement. But in the decades since, efforts to expand law enforcement powers to enforce immigration laws have been largely stifled by the courts. Federal judges have blocked key aspects of immigration laws adopted in Arizona in 2010 and South Carolina in 2011, including provisions that would have allowed law enforcement officers to check the immigration status of some people during routine stops and required immigrants to carry federal registration documents.
In recent committee hearings and floor debates, Republican lawmakers have touted the accuracy of their description of the southern border incursion, pointing to instances of fentanyl flowing across the border and human trafficking, murder and sexual assaults committed by illegal immigrants.
According to the Drug Enforcement Administration, most fentanyl in the United States is smuggled through legal ports of entry, usually brought across the border by Americans in vehicles, and while the U.S. immigrant population has been growing for decades, crime has declined over the same period.
In In a Texas case filed with the federal appeals court, Ilya Somin, a professor at the Antonin Scalia School of Law at George Mason University in Virginia, argued in an amicus brief filed on behalf of himself and the Cato Institute, a libertarian studies center, that expanding the definition of aggression to include illegal immigration would set a dangerous precedent, allowing countries to declare war on foreign powers whenever they want and detain more people without due process, regardless of their nationality.
“This goes against the letter and original meaning of the constitution” and will have disastrous effects, Somin said in an interview.
Jennifer M. Chacon, a professor at Stanford Law School who studies immigration and constitutional law, The Texas lawsuit said rhetoric stoking fears about immigrant invasions has appeared throughout U.S. history and has fueled harmful racial and ethnic tropes and prejudices.
“We assume that an invasion means armed groups banding together to carry out acts of warfare, necessitating a response. But that’s not the case,” she said, referring to rising migration around the world. “This is a transnational group of men, women and children fleeing for a variety of reasons.”
