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Texas Observer
Texas Observer
Justin Miller

Border Militia Bill Reveals Texas GOP’s Scheme to Expand State Enforcement Powers

With a rash of legislation unveiled at the bill filing deadline last Friday, Texas Republicans are escalating their brazen scheme to challenge the federal government’s authority on border security and immigration enforcement—and empower states’ rights on this front.

House Speaker Dade Phelan announced his final package of priority legislation centered on border security late Friday, headlined by House Bill 20, a measure by state Representative Matt Schaefer, a right-wing Republican from Tyler, that would create a state “Border Protection Unit” with officers who are empowered to “arrest, detain, and deter individuals crossing the border illegally including with the use of non-deadly force.” 

Under this bill, officers would be allowed to repel and return migrants back to Mexico or arrest individuals seen crossing the border between ports of entry, which would become a state felony that could carry harsh prison sentences under the bill. Schaefer’s legislation would codify and expand prior orders by Governor Greg Abbott—like granting National Guard soldiers the power to detain migrants—that have blatantly tested the limits of state authority. 

The special unit, to be housed within the Texas Department of Public Safety and run by a gubernatorial appointee, could hire a militia-style cadre of officers empowered to enforce these laws—with immunity from any civil or criminal liability. The bill also states that the unit could employ private citizens “to participate in unit operations and functions” who could be deputized with arresting authority if “trained and specifically authorized by the governor.”

HB 20 has been swiftly condemned as one of the most extreme and dangerous pieces of state legislation on immigration. The Mexican American Legislative Caucus (MALC) labeled the bill as an “extreme vigilante death squads policy.” In a statement, MALC chair and state Representative Victoria Neave said it is a “dangerous, radical, unconstitutional proposal which empowers border vigilantes to hunt migrants and racially profile Latinos [that] is going to result in the death of innocent people.” 

Texas Republicans celebrated the legislation as a bold new way to seize control of border enforcement from the feckless feds and dismissed critiques as fearmongering. 

In a tweet, Schaefer said, “The Texas Border Protection Unit will be an organization of professional men and women hired/trained under the authority of the Dept of Public Safety to protect Texans. Many will be licensed peace officers, others trained and specifically authorized by the Governor to make lawful arrests. Exactly as the Nat’l Guard & DPS operate now under Operation Lone Star.”

Phelan telegraphed the intent of the bill at a policy soirée with the Texas Public Policy Foundation (TPPF) in Austin earlier this month, indicating that HB 20 would become a vehicle to take the matter of states’ rights on border and immigration policy to the conservative-controlled Supreme Court. 

“Sometime next week, we are going to file a bill that is going to, I hope, make national headlines and change the conversation of border security, and, hopefully, take the battle all the way to the Supreme Court and allow Texas to protect its own border,” Phelan said.

Lieutenant Governor Dan Patrick’s Senate also unveiled its own bill last week. SB2424 would make illegal border crossing a state felony, carrying a one-year prison sentence for first-time offenders and up to life in prison for previously convicted felons. 

The Supreme Court last ruled on a case in this realm by striking down a 2010 Arizona law that allowed state police officers to arrest people who could not produce papers showing their legal status. Right-wing immigration hawks believe the matter is ripe for challenge now that the high court is stacked with a conservative majority.

As the Texas Tribune noted, Attorney General Ken Paxton’s office has been pining for precisely this sort of state law to use in its legal warfare against President Joe Biden’s administration. In a Senate committee hearing last year, Paxton’s top deputy Brent Webster explicitly cited the new makeup of the Supreme Court and said, “We ask for you guys to consider laws that might enable us to go and challenge that [Supreme Court] ruling again.” 

Meanwhile, immigration advocacy and civil rights groups will have to carefully consider how to respond if HB 20 becomes law. “We need to make that very challenging and difficult decision on whether or not we want to risk upsetting or removing prior precedent that was beneficial to our communities,” Roberto Lopez, senior advocacy manager for the Texas Civil Rights Project’s Beyond Borders program, told Texas Public Radio

In its 2021 session, the Legislature significantly increased funding for border security operations to finance Abbott’s Operation Lone Star—a sprawling scheme to deter and detain migrants, stop human and drug smuggling, and continue building former President Donald Trump’s border wall. The $4 billion program has flooded the border with thousands of state troopers and National Guard soldiers while doing little to stem the tide of global migration trends or hurt the business of Mexican cartels.

Republicans are planning to pump even more money—$4.6 billion in the next budget cycle—into the financial black hole that is Operation Lone Star. But they’re also promoting the hired hands that would come with HB 20’s Border Protection Unit as both a cheaper alternative and a way to bring weary troops home from the frontlines of the border warzone. Recall how well this worked with the Blackwater mercenaries brought in to finish the job in Iraq. 

“I think we can bring our troops home. We can bring home our game wardens. We bring home our National Guard and take the fight to the border ourselves,” Phelan said at the TPPF event. Even better, once Republicans take back the U.S. Senate, the feds will finally “reimburse us for the dollars spent on the border,” he said. And if you believe that, Mexico has a wall to build for you, too. 

So what does Abbott think about this proposal to overhaul his prized Operation Lone Star? He hasn’t said anything yet. But in a way, the bill would formalize Abbott’s recent organizational remix of his Operation Lone Star. Last month, he held a press conference in front of a tiny portion of his state border wall in Los Indios to announce the appointment of a so-called border czar who is charged with coordinating all aspects of the border enforcement apparatus.

His czar Michael Banks, who recently retired from his longtime job as a Border Patrol agent, said the sole purpose of his new state government gig is “to make the state of Texas the least desirable place for illegal immigration to cross. I don’t think it’s going to be that difficult. … We just need to be more aggressive.”

If HB 20 becomes law, Banks may soon be the general of his own personal border militia.

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