Congressman Roger Williams (R-TX) is introducing a new bill called the State of Texas Operational Protections Act, to authorize Texas to enforce their southern border and be reimbursed from the federal government for doing so.
Williams introduced the bill on Monday and discussed it on Tuesday morning while speaking with law enforcement in Tarrant County.
"This legislation gives Texas the authority to secure our borders and protect the lives of Texans and, most importantly, reimburses Texas for any state dollars spent on border security, which we have spent a sizeable amount of taxpayer dollars right here in Texas that should have not been spent if President Biden and his administration would have done what they’re supposed to do," Williams said.
Constitutional law expert David Coale said it's a creative way for Texas to get around its recurring problem with the federal government when it comes to the border.
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"By and large, the Biden administration has been successful in court, arguing that Texas' more aggressive efforts to enforce border security run afoul of federal preemption; they go into areas that are exclusively federal in our government that states can't go into," Coale explained.
This bill would get ahead of preemption.
"Because it basically says, 'It's OK, Texas go ahead and do-- and it lists a number of things that it's OK for Texas to go ahead and do," Coale said.
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But in solving Texas' preemption problem, Coale said, the bill could create two new constitutional issues.
The bill outlines some instructions for the Texas Department of Public Safety: In Section 3b, stating that the agency should work with federal, state, and local authorities for operations and, in Section 4b, stating that DPS should work with state agencies to identify specific areas that need more border security measures.
Coale said that sounds like it could be commandeering.
"That sounds a lot like the federal government not just saying, 'Here's a law everybody needs to follow, but giving specific direction to a specific office within state government," he explained.
He said the other constitutional challenge with this bill could be its reimbursement aspect: Congress constitutionally has the power of the purse, and the bill's funding plan isn't the way it usually works.
"Appropriation, as customarily understood, means Congress says, 'Here's the goal and here's the money to go carry that out.' This is kind of an end run around that," Coale said.
You can read the bill's full text here.
Backdrop: Federal lawsuit
Williams introduces his bill as the U.S. Supreme Court considers the Biden Administration's lawsuit against Governor Greg Abbott over wire that Texas installed on the border.
On Monday, justices allowed federal Border Patrol agents to cut Texas' razor wire on the U.S.-Mexico border while they consider a decision on the lawsuit.
"And so, without writing an opinion, without tipping their hand about any view of the merits, the Supreme Court just said, while we're all considering this, the wire can go, it can be cut, which suggests they generally see the law in that area, the federal government's way," Coale said.
Coale noted that the emergency decision was a 5-4 vote.
"So, going with the momentum from yesterday, that suggests that a slim majority, but a majority of the Supreme Court sort of believes in a traditional division between federal and state law," he said.
"But who knows what happens when they actually go to write the opinion," Coale added.
Williams acknowledged that even if Congress does pass the STOP Act, President Biden wouldn't sign it. But he said he'd get the ball rolling in case the next president would.
"And that may be the idea of this bill is not so much that it's going to solve everybody's problem, but that it begins a dialogue within the federal government about this issue that has been so far dominated by federal versus state in court," Coale said.
