New anti-immigration laws' real focus is the U.S. Supreme Court, report says

New anti-immigration laws in Iowa, Oklahoma and Texas that make it a state crime to be in the country illegally have all been put on hold. But their real purpose might be to get the U.S. Supreme Court to give states more power to handle immigration-related policies, a new report says.

Tom Jawetz, a senior fellow for immigration policy at the Center for American Progress, a left-leaning think tank, said in the analysis that the goal of the laws could be to invite the high court to overturn a 2012 decision that blocked Arizona from using local police to enforce federal immigration law.  

“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,” he wrote. “Courts should continue to rule swiftly against these laws and prevent them from taking effect.”

The Republican-backed laws are part of a larger effort by GOP officials to address what they believe is a migration crisis at the U.S.-Mexico border. Texas Gov. Greg Abbott has been particularly aggressive on migration-related issues. He has chartered buses from border communities to Democratic cities, often dropping the asylum-seekers off at remote locations without proper clothing or notice to local officials. Abbott has rallied governors to deploy National Guard troops to the Texas border with Mexico, claiming immigration is out of control. He has defied federal authorities by putting buoys and barbed wire along the Rio Grande, and used secessionist language to justify it.

And at the Republican National Convention in Milwaukee last week, Abbott said President Joe Biden “deserted his duty” on immigration. “On his first day of office, he gutted President Trump’s policies, and the result has been catastrophic,” Abbott said.

“To make matters even worse, Biden is even fighting tooth and nail to prevent Texas and other Republican states from securing our own borders,” he told delegates, who chanted “send them back” and waved preprinted placards that said, “Mass Deportation Now!”

As part of his immigration campaign, Abbott signed a bill in December that gives Texas police the authority to arrest people for illegally crossing the Mexico border. First-time offenders could face up to six months in jail if convicted, while repeat offenders could face sentences as long as 20 years. Afterward, a judge would be required to order police to transport the migrant to a port of entry.

“We think that Texas already has a constitutional [right] to do this, but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case,” Abbott said while signing the law.

Iowa Gov. Kim Reynolds and Oklahoma Gov. Kevin Stitt, both Republicans, signed similar measures in April.

Federal courts have put all three laws on hold, finding that the states were improperly trying to usurp the federal government’s power over immigration, which was the reason the five-justice majority cited for striking down Arizona’s “show your papers” law in 2012.

The court has changed dramatically since it issued the 5-3 decision in Arizona v. United States. Chief Justice John Roberts and Justice Sonya Sotomayor are the only two remaining justices who sided with the majority. Justices Clarence Thomas and Samuel Alito—both conservatives—issued partial dissents, and Justice Elena Kagan took no part in the decision.

Jawetz said in an interview that Republican officials seem emboldened by the Supreme Court’s recent rightward shift, in which it has overturned many long-standing precedents. The most well-known case came when the conservative majority negated the constitutional right to abortion in 2022. But the court has continued to sweep aside well-established policies, such as when it ruled that federal executive agencies were not entitled to deference in challenges to their policies.

One of the biggest indicators that the state laws are meant as a way to get before the Supreme Court is that lawmakers did not even attempt to craft policies that would adhere to the court’s previous decisions, Jawetz said.

“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,” he wrote.

“We have seen in the past local ordinances to make it harder for people who are believed to be undocumented to rent houses. Those have been struck down. We have seen courts strike down local ordinances making it illegal to hire people who are unauthorized to work. Those have been struck down because that’s already covered by federal law,” Jawetz explained in an interview. “In Arizona, we saw a state law struck down by the Supreme Court where the state authorized law enforcement to detain people who they believed to be eligible for removal from the country, and the Supreme Court said, ‘That’s not your job.’”

“These laws absolutely take things a step further,” he said. They create a “duplicative and more expansive” system for punishment and potential deportation than the federal system.

In fact, the Texas and Iowa laws specify that state judges cannot delay the state-based deportation proceedings, even if the federal government is still determining the immigration status of the defendant.

“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,” Jawetz wrote.

That could mean, for example, that people with green cards or people with valid claims of asylum would be forced out of the country, he said. Texas could also try to deport someone to Mexico even if the federal government determines that they should not return there because they face a credible threat of torture.

“This independent authority that states claim to have to remove people from the country is just not an authority you could find in the law anywhere,” Jawetz said. “That’s why even judges appointed by former President Trump have enjoined these laws. The only real question here is going to be: If and when these cases get to the Supreme Court, how does the court decide?”