On one front, through the migrant transfers and an executive order from Texas Gov. Greg Abbott instructing state law enforcement officials to apprehend undocumented migrants, the red states are looking to expand their own authority over immigration enforcement which is traditionally an area where courts have provided almost complete primacy to federal power.
Simultaneously, shifting combinations of Republican-controlled states have launched a swarm of lawsuits, primarily before sympathetic Republican-appointed judges, looking to prevent President Joe Biden from unwinding many of the hardline immigration enforcement policies implemented by his predecessor, Donald Trump.
What links these twin policy offensives is a “deeper desire to create far more autonomy and authority at the state level over immigration matters, which traditionally has been absolutely encased in federal authority,” said Doris Meissner, a senior fellow at the Migration Policy Institute, who served as commissioner of the Immigration and Naturalization Service during Bill Clinton’s two presidential terms.
Even this comprehensive campaign to wrest greater control over immigration policy represents just one front in the much larger drive unfolding across states where Republicans control the state legislature, the governorship, or both.
The moves by Republican governors to remove migrants in large numbers from red states to blue jurisdictions takes the idea of red and blue America as separate nations to a new, ominously literal extreme. To many critics, it echoes other examples of nations banishing unwanted populations across a border–as the US did with the mass deportations of undocumented workers to Mexico during “Operation Wetback” in the 1950s. Some even see in these actions echoes of the racist “ethnic cleansing” that has accompanied wars in Eastern Europe and is evident now in Ukraine.
“The red states are deporting people,” David Leopold, former president of the American Immigration Lawyers Association, told me. “It an attempt at an internal mass deportation. … The spirit of cleansing an area of certain people, is so un-American and so repugnant to everything this country stands for.”
“They should use every tool in their toolkit, including litigation, to stop red state politicians from seeking to wrest that control that belongs with the federal government,” said Jane Bentrott, a lawyer at the Justice Action Center, an immigration advocacy group based in California.
In turn, the Republican governors argue that they are only acting to protect their states from the impact of what they universally call Biden’s failure to secure the border. “Instead of their hypocritical complaints about Texas providing much-needed relief to our overrun and overwhelmed border communities, President Biden and Border Czar [Kamala] Harris need to step up and do their jobs to secure the border — something they continue failing to do,” Renae Eze, Abbott’s press secretary, said in an emailed statement.
Immigration experts across the ideological spectrum agree that the large flow of asylum seekers and other undocumented migrants has created enormous strains for communities near the Mexican border. “This is an unsustainable situation at the border,” Meissner said. “It’s unsustainable for Customs and Border Patrol, for the administration, for critics of the administration, for the country. Even though we can as a country take very large numbers of people … this way of doing it is not sustainable. It’s just not the right way to be doing business.”
Leopold said the fact that the migrants “are being shipped across state lines … right there triggers federal jurisdiction.” But Meissner said the pivotal issue in determining whether the transfers are violating any federal laws “probably comes down almost entirely” to whether migrants consented to the trips or were coerced or misled to participate.
In response to written questions, Abbott’s office provided a copy of a waiver it said all of the bussed migrants have signed in which they “agree to be transported by the State of Texas or its designated agency officials to locations outside of Texas.”
“These migrants willingly chose to go to Washington, D.C., New York City, or Chicago,” Eze said.
Meissner agreed that even if shipping undocumented individuals to other cities without any coordination is questionable policy and “fiendishly cynical,” it’s likely “a lot of migrants were entirely willing and pleased to be able to get this bus transportation because in the normal course they are responsible for paying for their transportation once they are in the country.”
The group, Lawyers for Civil Rights Boston, said the flights potentially violated several federal laws and called on the Justice Department to open a federal investigation. “This type of conspiracy to deprive our clients of their liberty and civil rights and interfere with federal immigration proceedings must be thoroughly investigated for violations of criminal laws,” the group wrote. On Monday evening, the county sheriff in Bexar County, TX, which is centered on San Antonio where the flights originated, announced that he is launching an investigation into the maneuver.
Apart from the question of whether the flights triggered any criminal liability, immigration advocates also want the administration to pursue a federal court injunction stopping future transfers. “I am quite confident that this is enough of an interference with exclusive federal responsibility [over immigration] that they could take action,” said Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund.
With its immigration enforcement directives, Texas “may be purposely overreaching in the way that has been done with the abortion case for years and years in order to generate a lawsuit that then can get to the Supreme Court with the view that this Supreme Court would rule differently on that precedent,” in the 2012 Arizona case, Meissner said.
These red state challenges to federal primacy over immigration enforcement come even as shifting combinations of the same states are pursuing multiple lawsuits to constrain federal authority and to prevent Biden from changing hardline Trump policies. Bentrott said her group counts at least 20 active lawsuits from different coalitions of red states against Biden’s immigration policies. As part of that offensive, immigration advocates are bracing for a decision from the Fifth Circuit Court of Appeals within weeks, if not days, striking down the DACA program that provides legal protections to young people brought to the country illegally as children.
But while Biden criticized last week’s flights, and Rachael Rollins, the US attorney for Massachusetts, has said she will look into them, the administration has conspicuously avoided promising legal action. And the Justice Department has not filed suit against Abbott’s broader executive order authorizing state law enforcement officials to move undocumented migrants to the border, even though many immigration lawyers consider it a clear violation of federal primacy.
Frank Sharry, executive director of America’s Voice, an immigration advocacy group, said the administration’s muted response likely makes sense from a short-term political perspective. “In the cold calculus of midterm elections, Biden and most Democrats have decided to close on abortion and ignore immigration,” he said. “They do not want to give oxygen to a desperate GOP attempt to change the subject.”
Yet the choice not to fully engage, Sharry said, carries a long-term cost in terms of making it more difficult to consider any comprehensive response to the immigration dilemma — like the bills that passed the Senate with bipartisan filibuster-proof majorities in 2006 and 2013 that coupled tougher enforcement with a pathway to citizenship for millions of undocumented migrants. “You can’t win an argument you don’t engage in,” Sharry argued, “and leaving the framing of the issue to the GOP and Fox means you — and our issue — will lose a great deal of ground.”
With these aggressive new maneuvers from DeSantis and Abbott, immigration has now joined issues such as abortion, voting and LGBTQ rights in the red state attempt to carve out a separate sphere of influence that sets its own rules and repels federal attempts to maintain a national baseline of guaranteed rights.
“There’s absolutely no doubt that what is going on is a kind of tug of war between Washington and state capitals about where the balance of power is going to go,” said Donald Kettl, a professor emeritus of public policy at the University of Maryland and author of the 2020 book, “The Divided States of America.”
Previously the sharpest division among the states, of course, came in the years before, during and after the Civil War when first slavery and then the federal efforts to protect rights for the freed slaves during Reconstruction sundered the north from the south. But experts like Kettl note that today’s divisions involve more states, and span more issues, than even those divides. By, in effect, deporting undocumented migrants from red areas to blue ones, Abbott and DeSantis have underscored how thoroughly they view blue America as fundamentally a different country than their own.
“We tend to look at the theater that Abbott and DeSantis have staged,” Kettl said. “But there are more fundamental battles at play here and there is very little attention being given to them … or where this is likely to take the country.”