Texas is taking an increasingly aggressive stance about using state law enforcement and the National Guard to police its border with Mexico, and may soon expand the territory it has wrested from federal control. But so far the Biden administration has not followed through on its veiled threat to sue.
A month ago, Texas took control of a 2.5-mile stretch of a city park on the Rio Grande where large groups of migrants crossed in December. The Texas National Guard now patrols Shelby Park and has erected a barrier that combines tall “anti-climb” fencing and razor wire to keep migrants from coming through — and to keep federal Border Patrol agents from gaining access.
Those agents responded to the takeover by removing their equipment and leaving. The Biden administration sent a cease-and-desist letter and threatened to refer the matter to the Justice Department, an implicit threat to sue the state and Gov. Greg Abbott.
Texas then began arresting migrants who had crossed the river into Shelby Park.
When a National Guard soldier comes across a migrant, a spokesman for the Texas Department of Public Safety explained, the soldier detains the migrant until a state trooper can come make an arrest for trespassing. From there, the migrant is taken to prison an hour and a half away in Dilley, Texas, to await a hearing before a magistrate judge. Only after the case is adjudicated is the migrant turned over to federal officials, who can determine whether to deport the migrant.
Texas began arresting and prosecuting migrants for trespassing in border areas in 2021, and to date has arrested more than 10,000, according to the DPS, and the number has increased with the state’s takeover of Shelby Park.
The procedure diverges from previous practices involving National Guard at the border, where migrants were held, but not arrested, until a Border Patrol agent could apprehend and process them. As an assist to Border Patrol, many Republican-led states have sent National Guard to help with surveillance and the construction of border barriers, but with strict instructions not to make arrests or violate a 1878 federal law known as the Posse Comitatus Act that prohibits the military from enforcing the law within U.S. territory.
The Biden administration has not sued. It did win a Supreme Court ruling that it could take down the razor wire that Texas has deployed in Shelby Park and elsewhere, which the administration said has led to drowning deaths among migrants. It has now cut razor wire in some sections of the border, but not in Shelby Park, which it can’t access.
Three Biden administration officials said the Supreme Court’s recent razor wire ruling was a win in federal government’s fight with Texas over Shelby Park, but they concede it does not explicitly give control of the area back to Border Patrol.
Now Texas is looking to expand its control of the border. A spokesman for the DPS said the National Guard is eyeing areas outside of Eagle Pass that have seen an uptick in migrants since Shelby Park was taken over by the state. A spokesman for the Texas Military Department, which runs the state’s National Guard, did not respond to a request for comment.
Speaking at a news conference Sunday to announce the expansion, Abbott said, “A state can defend itself and its citizens to protect their safety from the imminent danger that we are facing and from an invasion from millions of people coming from across the globe into our country, who are unaccounted for whatsoever.”
Abbott was joined by Republican governors from 13 other states. More governors are now responding to political pressure to send their own National Guard to the border, including states that are not on the southern border, such as Tennessee and North Dakota.
The federal response
So why hasn’t the Biden administration stepped in to assert its authority to enforce immigration law along an international border?
The three Biden administration officials told NBC News they do not want a confrontation between Border Patrol and Texas National Guard, but they still consider legal action a tool they might deploy. Shortly after Texas started blocking the Border Patrol from accessing Shelby Park, a mother and two children drowned while crossing the Rio Grande. The officials say they might have been saved if Border Patrol had been able to operate its equipment to surveil the river and respond to migrants in distress.
For now, however, optics mean the administration is holding fire, said a former Department of Homeland Security official. The official said that between the fight to pass a border bill, defend Homeland Security Secretary Alejandro Mayorkas in an impeachment fight, and other lawsuits challenging Texas, taking on the Republican-led state would ignite another fire at a time when the administration wants to appear tougher on border security.
Tom Warrick, director of the Future of DHS project at the Atlantic Council, put it another way.
“I think that the federal government is watching this closely to see what Texas does to expand its authority, but at this point it’s a tactical decision,” Warrick said. “If Texas expands its authority, that would probably provoke a (legal) response. They want to wait until they have a rock-solid case.”
The Justice Department declined to comment about its decision not to take Texas to court on the matter.
Source: | This article originally belongs to Nbcnews.com
