Controversial border security law challenged in ACLU lawsuit

AUSTIN, Texas - On Monday, Gov. Abbott signed SB 4. The controversial new law enables Texas police to arrest people suspected of crossing the border illegally, and allows judges to either send them to jail or send them back.

Just one day later, the ACLU and other groups filed a lawsuit trying to prevent that law from taking effect in March.

FOX 7 Austin's John Krinjak sat down with constitutional law professor Eddy Carder from Prairie View A&M University to discuss the law, the lawsuit and what happens next.

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JOHN KRINJAK: What is SB four?

EDDY CARDER: SB 4 is essentially a law passed by the state of Texas that makes it a state crime to illegally enter the U.S. And the emphasis there is upon the concept of a state crime. It makes it a state crime.

JOHN KRINJAK: And it took literally less than 24 hours for the ACLU to come out with this lawsuit in conjunction with the Texas Civil Rights Project. Talk to us about that lawsuit. What's kind of the gist of it?

EDDY CARDER: That particular lawsuit says that, essentially, that this particular issue is not a matter of state concern. It is a federal matter. It is a federal concern, and that the state is overstepping its bounds and limits and that this law, therefore, is unconstitutional because two areas have traditionally been entrusted to the federal government. Those two areas are immigration law and then issues of foreign affairs. And essentially, this challenge by the ACLU says that particular law, SB 4four, overstepped the bounds of the state on both of those counts.

JOHN KRINJAK: Where did things go from here? Obviously, it looks like we're going to expect an appeal from Gov. Abbott's people. How do you see this lawsuit proceeding? Do you think it has teeth?

EDDY CARDER: This lawsuit certainly has teeth. It rubs directly up against and conflicts with the supremacy clause of the U.S. Constitution. If a state law conflicts with a federal law, then the state law is unconstitutional. It also flies in the face of various Supreme Court rulings. This is specifically 2012, the U.S. vs. Arizona, I believe it was, or Arizona vs. the U.S., where the Supreme Court came down on the side of immigration being entrusted to the domain of the federal government. And this law has been passed, essentially, it seems, with the objective of testing the limits of that law and seeing if we can find some kind of mediating position regarding giving the states some degree of authority with regard to the governing in the area of immigration law.

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JOHN KRINJAK: And I mean, speaking of finding a mediating position or finding a compromise, obviously, you know, we've heard a lot from the governor and a lot of people who've seen the situation at the border that, you know, there is a problem, that something needs to be done. But people raise concerns about this law, you know, things like racial profiling, things like denying people their due process. Do you think this sort of forces lawmakers' hands either at the state or federal level to actually craft some legislation here that both sides can get on board with?

EDDY CARDER: It seems as though we are at a constant impasse with regard to immigration law in our nation. This law passed by the state of Texas has its roots and its origin and the obvious, a failure of the federal government to enforce immigration law. And the states are looking for some kind of relief, some kind of alternative, and some kind of resource with which to battle the real immigration issues that they are up against. It will have to play itself out, and we will see if there's some kind of middle ground.

JOHN KRINJAK: So, I mean, with this law in Texas, does this potentially set a precedent for what other states might do with regard to the issue at the border?

EDDY CARDER: This particular law? SB 4 out of Texas definitely will set a precedent and give guidance and direction to other states with regard to the extent to which they can also establish their own immigration policy.