The federal Department of Justice says it will file a lawsuit if Texas does not make a pledge by Wednesday not to enforce state immigration laws passed last year. In 2023, the legislature passed a law creating a state crime for people who cross illegally between ports of entry.
SB 4 makes illegal border crossings a misdemeanor punishable by up to six months in jail and a fine of $2,000. State judges could also drop the charges if the migrant agrees to return to Mexico.
A repeat offender would face a felony and up to 20 years in prison depending on the migrant's criminal record.
"The goal of Senate Bill 4 is to stop the tidal wave of illegal entry into Texas," Governor Greg Abbott said when he signed the measure in December.
The law is scheduled to take effect in March, but the federal Department of Justice gave Abbott a deadline of Wednesday to pledge not to enforce the law. DOJ sent Abbott a letter last week threatening a lawsuit.
"SB 4 is preempted and violates the United States Constitution," Deputy Assistant Attorney General Brian Boynton wrote in the letter. "The United States is committed to both securing the border and ensuring the processing of noncitizens consistent with the Immigration and Nationality Act. SB 4 is contrary to these goals."
Boyton wrote SB 4 "intrudes into a field that is occupied by the federal government." He said the U.S. Supreme Court has previously ruled only the federal government can initiate the removal process because the issue touches on foreign relations.
The U.S. House Committee on Homeland Security says encounters at the southern border increased 40% last year from 2021 and more than doubled since 2019.
During the bill signing, Abbott said 2.4 million people were caught crossing the border illegally in the fiscal year that ended in September. He said 11 people on the terror watch list were caught at the border during the Trump Administration. Since Joe Biden took office, Abbott said 294 people on the terror watch list have been apprehended.
"The problem is far more than just numbers. It's also a national security crisis," he said during the bill signing in December.
Boynton's letter asks Texas not to enforce the law.
"Because SB 4 is unconstitutional and will disrupt the federal government's operations, we request that Texas forbear in its enforcement," he wrote. "To the extent you believe there are any facts or law supporting the validity of SB 4, we urge you to promptly bring them to our attention."
Abbott's office says the governor is prepared to argue Texas' case before the U.S Supreme Court.
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