McALLEN, Texas (Border Report) — Texas Gov. Greg Abbott on Thursday ordered state troopers and Texas National Guard members to return undocumented migrants back to the border, but migrant advocates tell Border Report that would be a violation of powers because federal authorities are tasked with the transport of those who are in the country illegally, and they worry about this prompting racial profiling.
Under Abbott’s executive order, the Texas National Guard and Department of Public Safety are authorized “to respond to this illegal immigration by apprehending immigrants who cross the border between ports of entry or commit other violations of federal law, and to return those illegal immigrants to the border at a port of entry.”
U.S. Customs and Border Protection officers staff the ports of entry along the Southwest border, and either the U.S. Border Patrol agents or law enforcement agencies working with federal border authorities typically return migrants to ports of entry.
The announcement comes as Abbott has spent in excess of $4 billion in state funds on border security initiatives since 2021 as part of Operation Lone Star, a controversial border security initiative that has sent 10,000 troopers and guardsmen to the border and currently is under investigation by the Department of Justice.
State officials have not previously been part of that equation, Romeo Rodriguez, chief of police for the South Texas border city of Hidalgo, told Border Report.
“I haven’t seen anyone come up with a bus load or van (from the state),” Rodriguez said when informed Thursday about the new order.
The McAllen-Hidalgo International Bridge that connects to Reynosa, Mexico, is on property owned by the city of Hidalgo.
Rodriguez says his police do participate in Operation Stone Garden, which is a federally-funded program that allows local law enforcement agencies to assist Border Patrol with the arrest of migrants. But he says they never initiate arrests on their own or without coordinating with federal officials.
“It’s an awkward situation for us because we don’t have the authority to ask people for their documentation when it comes to immigration status and for us to decide who we’re going to dump at the river or the bridge. So we don’t typically get involved,” Rodriguez said. “But if he wants to get involved and give authority to the state let’s see what happens.”
It is unclear, though, Abbott’s order how or where the handoffs will take place.
Border Report has reached out to CBP, the Department of Homeland Security and Border Patrol agents to ask whether they will coordinate with state officials or need to ramp up personnel and staff to meet troopers and guardsmen.
This story will be updated if additional information is received.
Abbott says this move is necessary to stop the hundreds of migrants who cross the Rio Grande every day and to stop those who make it into the interior of the U.S.
“While President Biden refuses to do his job and enforce the immigration laws enacted by Congress, the State of Texas is once again stepping up and taking unprecedented action to protect Americans and secure our southern border,” Abbott said in a statement. “The cartels have become emboldened and enriched by President Biden’s open border policies, smuggling in record numbers of people, weapons, and deadly drugs like fentanyl.”
Russ Vought, president of the Center for Renewing America, a conservative think tank, responded Thursday to Abbott’s orders by saying it isn’t enough and they want more.
“We acknowledge Gov. Abbott’s recognition that the facts on the ground along the border comport with the Constitution’s understanding of an invasion. However the governor does not appear to formally declare an invasion nor direct the National Guard and Department of Public Safety to remove illegals across the border directly to Mexico. That is critical. Otherwise this is still catch and release,” Vought and and senior fellow Ken Cuccinelli tweeted.
But many say Abbott has overstepped his authority, and civil rights are at risk.
“Gov. Abbott’s order violates the longstanding legal precedent that immigration enforcement is a federal responsibility,” said Laurence Benenson, vice president of policy and advocacy at the National Immigration Forum. “We can agree that we need more orderly processes at the border. This isn’t one. The task of enacting immigration enforcement and removal policies belongs exclusively with the federal government.”
Austin Kocher, a researcher at Transactional Records Access Clearinghouse of Syracuse University, told Border Report that he expects this to be challenged in court.
“It certainly represents a really complicated and quite troubling jurisdictional question to have state law enforcement agencies essentially trying to usurp the role of the federal government. The Supreme Court has ruled many many times in the last decades that immigration enforcement is the purview of the federal government and typically courts don’t like it when states try to take on that role or politicize immigration enforcement within states itself so it will be interesting to see how this plays out,” Kocher said. “I have no doubt this will be challenged in court at some point and definitely represents a complicated picture.”
Kocher added that he is concerned about the process that state troopers and Texas National Guard troops will use to identify potential migrants and whether it could prompt racial profiling.
“If you’re not trained as an immigration officer of some kind how do you know who is undocumented and how do you know who crossed the border unlawfully into the country?” Kocher said.
He worries officers will “fall back on using things like race or Spanish-language being spoken to use that as a proxy for doing immigration enforcement which inevitably leads to lawsuits on racial profiling,” he said. “The big question is will they be policed under this policy?”