Justice Department threatens to sue Texas if it implements new immigration enforcement law

The Justice Department is threatening to sue Texas if it enforces a new state law that lets police arrest migrants who illegally cross the border, according to a letter obtained by NBC News.

In the letter, sent Thursday to Republican Gov. Greg Abbott, the Justice Department argued that the law, which Abbott signed this month, is unconstitutional and that implementing it would result in a federal lawsuit.

The statute “effectively creates a separate state immigration scheme by imposing criminal penalties for violations of federal provisions on unlawful entry and reentry into the United States … and by authorizing state judges to order the removal of noncitizens from the United States,” wrote Brian Boynton, a top official in the Justice Department’s civil division.

The letter was first reported by the Houston Chronicle and the San Antonio Express-News.

The state law makes “illegal entry from a foreign nation” into Texas a crime and allows the state to charge migrants with a misdemeanor punishable by up to six months in jail or a $2,000 fine. It is set to go into effect March 5.

The Justice Department argued that the law violates the Constitution, which gives the federal government — rather than states — responsibility for controlling international borders. It also wrote that the Texas law “undermines the United States’ foreign relations.”

Texas has until Jan. 3 to confirm that it will not enforce the new law; otherwise the U.S. “will pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government,” the letter said.

Abbott’s office indicated Thursday that he welcomes another court battle with the Biden administration.

Abbott spokesperson Renae Eze said in a statement that the state is “prepared to take this fight all the way to the U.S. Supreme Court to protect Texans and Americans from President Biden’s open border policies.”

Abbott also bashed the Biden administration on X, saying he has “never seen such hostility to the rule of law in America.”

Abbott has largely been unsuccessful in federal court over migration issues. He was recently ordered to remove a floating barrier in the Rio Grande, while another court rejected his effort to prevent U.S. Customs and Border Protection from removing razor wire near the border.

The surge of migrants at the U.S. border has become a frequent flashpoint between Abbott and Democrats, who have criticized his moves to bus migrants from border towns in his state to Democratic-led cities like Chicago and Washington, D.C. At the same time, some Democrats have called on the Biden administration to provide federal assistance to coordinate with Texas on transporting migrants.

Thursday’s letter comes after U.S. Customs and Border Protection recorded a string of back-to-back record daily numbers of undocumented migrants crossing the border.