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U.S. Department of Justice says it’ll sue if Texas enforces new law punishing illegal border crossing

Texas National Guard position themselves on the banks of the Rio Grande, Tuesday, Dec. 20, 2022, in El Paso.
Ivan Pierre Aguirre for The Texas Tribune
Texas National Guard position themselves on the banks of the Rio Grande, Tuesday, Dec. 20, 2022, in El Paso.

The U.S. Department of Justice has threatened to sue to stop a new Texas law that allows state police to arrest people suspected of illegally crossing the border — unless Gov. Greg Abbott backs off of enforcing the law.

The new law, known as Senate Bill 4, is “unconstitutional and will disrupt the federal government’s operations” vis-à-vis immigration and border enforcement, an agency official told Gov. Greg Abbott in a letter first reported Thursday by the Houston Chronicle and later posted on social media by a CBS News reporter.

If Texas does not formally refrain from enforcing the law by Jan. 3, the agency will “pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government.”

A person with knowledge of the letter confirmed that it had been sent.

An Abbott spokesperson said Thursday that Texas is prepared to fight all the way to the U.S. Supreme Court in defense of the law, adding that the governor signed the law "to help stop the tidal wave of illegal entry into Texas." On X, formerly known as Twitter, Abbott said the Biden administration "not only refuses to enforce current U.S. immigration laws, they now want to stop Texas from enforcing laws against illegal immigration."

"I’ve never seen such hostility to the rule of law in America," Abbott wrote. "Biden is destroying America. Texas is trying to save it."

The DOJ did not respond to a request for comment.

The new law makes crossing the Texas-Mexico border between ports of entry a Class B misdemeanor. If a migrant agrees to return to Mexico, a judge can drop the charges. Otherwise, a suspected offender faces a potential six-month jail sentence — with longer sentences for repeat offenders.

Abbott signed the law Dec. 18 and it’s slated to take effect March 5.

The DOJ said in its letter that only the federal government can enforce immigration laws — an assertion backed up by federal court rulings, including by the U.S. Supreme Court. That argument is at the heart of a lawsuit brought last week by El Paso County and immigrants rights groups to overturn the law and stop it from taking effect.

Abbott has said that the federal government is shirking its duties when it comes to immigration enforcement — and has therefore left that job to the state.

Even so, the law has drawn the ire of Mexican officials. Mexican President Andrés Manuel López Obrador has also threatened to challenge the law.

The DOJ’s threat came as welcome news to Democrats.

“Asking local police to hunt down Texans who look like immigrants doesn’t make us safer: in fact, it takes police away from investigating real crime,” U.S. Rep. Greg Casar, D-Austin, said in a statement. “The federal government must block this unconstitutional anti-immigrant policy before it takes effect.”

From the Texas Tribune