In a direct challenge to federal power over immigration, the Texas House on Thursday approved the creation of a state-level crime for entering the country from Mexico between ports of entry, allowing local police agencies to arrest and jail unauthorized migrants or order them back to Mexico.
The legislation had been called for by Gov. Greg Abbott in what would be a sharp escalation of his multibillion-dollar border security program, known as Operation Lone Star. The Texas House also approved an additional $1.5 billion for the state to use to construct its own barriers near the international boundary.
The arrest measure now returns to the Senate, which has already approved its own version, and then head to Mr. Abbott’s desk for his signature.
“It is a humane, logical and efficient approach,” Representative David Spiller, a Republican from west of Fort Worth, said in introducing his arrest bill before the vote. “There is nothing unfair about ordering someone back from where they came if they arrived here illegally.”
Emotions ran high during hours of arguments and motions on the House floor that stretched through the night and into Thursday morning, with Democrats objecting to what they said would be a new criminal enforcement regime that could end up inadvertently targeting Hispanic Texans. At one point, tempers flared as Republicans moved to halt amendments to the bill.
“My community is being attacked,” one Latino representative, Armando Walle, a Houston Democrat, told his Republican colleagues. “Y’all don’t understand,” he said. “It hurts us personally.”
For more than two years, Mr. Abbott and Republican lawmakers have been testing the boundaries of the state’s power to enact its own aggressive law enforcement policies in response to the surging number of migrants crossing into the state from Mexico.
But the creation of a criminal offense under state law — empowering Texas officers to arrest migrants, including those seeking asylum — went a step further into a realm of immigration enforcement that is typically reserved to the federal government.
The legislative move is likely to set up a consequential court fight over immigration and, for opponents of President Biden’s immigration policies, create a chance to revisit a 2012 Supreme Court case, originating in Arizona, that was decided 5 to 3 in favor of the federal government’s primary role in setting immigration policy.
“The core question is whether the states can make it a crime to violate federal immigration law, and detain an alien for violating that law,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston, who has written that Justice Anthony Kennedy, the author of the Arizona decision, left open the question of detentions.
Other legal experts saw the Supreme Court decision as clearly pre-empting state laws such as the one moving forward in Texas.
“What Texas is doing taking up Arizona’s mantle,” said Daniel Morales, a professor of law at the University of Houston. “This is a complete relitigation of the issues that appeared and were settled in that case.”
State police officials in Texas have already discussed how they would use the new law to detain migrants caught crossing the Rio Grande, take them back to the international bridges and direct them to cross over into Mexico — or else be arrested and charged.
During a House committee hearing on the legislation, Steve McCraw, the director of the Texas Department of Public Safety, said that large new jail facilities would not be needed to deal with a huge number of arrests if most people agreed to go back over the border. The more migrants taken to the bridges who are “willing to voluntarily go over, the better,” Mr. McCraw said.
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