Florida and Texas Escalate Their War on Migrants - Saenz-Garcia Law

Florida and Texas Escalate Their War on Migrants

Since President Biden took office, he has faced attacks on his handling of the border from Governors Greg Abbott of Texas and Ron DeSantis of Florida. Both states brought lawsuits against Biden’s efforts to reverse Trump administration policies, with varying degrees of success. But in the last few weeks, the attacks have escalated. Florida plans to open a grand jury probe into families of migrant children and Texas ordered National Guard troops to drive migrants to the border.

The escalation began last week when the Florida Supreme Court greenlit Governor Ron DeSantis’ request to open a sweeping state grand jury probe into “trafficking” of unaccompanied children. The order will permit a jury to be convened for 12 months and allows Florida prosecutors to probe actions taken by parents of unaccompanied children or migrants. It could also represent a major threat to Florida nonprofits, as it permits the grand jury to investigate organizations that assist migrants.

Most unaccompanied children arriving at the border have family already in the United States. At times, the family helps pay to bring their loved one to the border, reasoning that it’s the only way to protect their child from the predations of persecutors. But Florida views these actions as funding “transnational criminal organizations.”

The Supreme Court’s order permits Florida state prosecutors to investigate “parents, guardians, or other family members,” as well as any “organizations who are involved, directly or indirectly” in “smuggl[ing] or traffic[king]” unaccompanied children or undocumented immigrants to Florida.

The order raises the concern that Florida will use grand jury subpoenas to carry out invasive fishing expeditions at immigration nonprofit organizations by demanding client lists at the threat of criminal prosecution. It could also lead to state prosecutors targeting parents of undocumented children and send a chilling threat to undocumented and mixed-status families across the state.

Meanwhile, in Texas on Thursday, July 7, Governor Abbott further ratcheted up his war on immigrants by issuing an executive order instructing Texas National Guard troops and state troopers to take migrants into custody and send them back to ports of entry on suspicion of violating federal law. The order flirts with the extremist theory that Abbott could “declare an invasion” and order troops to carry out deportations to Mexico. It does not go so far as to adopt that theory, but instead declares that in Abbott’s view, President Biden has failed to protect against an “invasion.”

By hinting at invasion rhetoric, Abbott’s statement gives credence to extremist viewpoints who see migrants as no different than an invading army and want to use violent force to repel them. Mass shooters in El Paso, Pittsburgh, and Buffalo have cited invasion rhetoric as reasons to target minority communities. As a result, the order threatens to embolden hateful actors even further.

In the past, under Operation Lone Star, Abbott had only ordered state law enforcement to enforce state law against migrants, primarily charging them with misdemeanor trespassing. This latest order goes much further, ordering law enforcement to detain migrants for federal immigration law violations, which the Supreme Court has said is not permissible.

Importantly, Abbott’s order seems to be significantly more bark than bite. It orders state law enforcement to take migrants to ports of entry but doesn’t say what to do when they get there. If they drop off migrants for U.S. Customs and Border Protection, then the order would amount to mostly shuffling people from one location to another. Nevertheless, any state law enforcement officer who takes a migrant into custody under this legal theory could be risking significant legal liability, as there is no authority to do so.

In the middle of an election year where both Abbott and DeSantis are up for reelection, the governors have chosen to scapegoat migrants and fight against the Biden administration, rather than work together with the federal government on managing migration. It’s notable that in California and New Mexico, which have also seen increased migration, the governors are working with federal officials and impacts on local communities have been significantly reduced. Unfortunately, there is no sign that state officials in Texas and Florida are looking to back down anytime soon.