Our Constitution grants the federal government the power to enforce immigration. However, the day-to-day lives of non-citizens are impacted by both the federal government and its state and local counterparts.
This LSG report will provide an update on recent Congressional and Executive actions on immigration reform and explore ways the State can support immigrants in Texas.
Recent Immigration Reform
The Constitution grants the federal government exclusive power over who enters the U.S. and on what terms they can remain. These concepts are the bedrock of immigration reform policy.
The U.S. has enacted both discriminatory and inhumane immigration policies, as well as encouraging reforms, some of which are highlighted below.
1980s
Many say that the U.S. has not enacted comprehensive immigration reform since Ronald Reagan’s administration in 1986 — that’s essentially true. The reform package, called the Immigration Reform and Control Act (IRCA), is most remembered for providing a pathway to legal permanent status for 3 million undocumented immigrants who had continuously resided in the U.S. since 1982. The IRCA also sought to decrease unlawful crossings and unauthorized workers by increasing funding for the U.S. Customs and Border Patrol and creating civil and criminal penalties for employers who knowingly hired immigrants unauthorized to work in the U.S.
1990s
Four years later, President George H.W. Bush signed into law the 1990 Immigration Act, which increased immigration capacity primarily by expanding employment-related immigration visas. It also created today’s diversity visa lottery, which randomly provides a limited number of visas to citizens of countries with low immigration rates to the U.S.
2000s-2010s
Since then, there have been some smaller-scale, intermittent amnesties and steady spending on border security. In 2012, President Barack Obama created the Deferred Action for Childhood Arrivals (DACA) program through an executive order, which granted more than 700,000 undocumented immigrants who arrived in the U.S. as children protection from deportation.
Today
In 2024, a bipartisan group of Senators, led by Sen. James Lankford (R-Oklahoma), brought forth a proposal to address immigration in the Emergency National Security Supplemental Appropriations Act (H.R. 815), an emergency supplemental funding bill for Ukraine, Israel, Taiwan, and U.S. border security operations. While some regard the proposal as a mixed bag or not comprehensive enough, the bill seeks to expand legal immigration with increased employment-based and family-based visas, speed up asylum adjudication with more asylum officers and immigration judges, and fund a program for counsel for children 13 and younger who arrive without parents. The bill also includes funding to increase U.S. Customs and Border Protection (USBP) personnel, install non-intrusive inspection (NII) machines to detect fentanyl at ports of entry, and increase detention beds in Immigration and Customs Enforcement (ICE) detention facilities.
After presumptive Republican presidential nominee Donald Trump announced his opposition to the bill, House Speaker Mike Johnson called it dead on arrival. Most recently, the bill did not gain enough votes to advance in the Senate. In Februrary, President Biden was in Texas advocating for the measure.
Overall, the first session of our 118th Congress mostly maintained the status quo, with the House and Senate unable to agree on reform to our immigration system. Several immigration-related laws were passed to extend existing programs, increase some employment-related visas, and increase border security appropriations.
Moving Forward
Although polarization has only increased since the last major immigration reform act in 1986, some studies show the country as a whole has a more favorable attitude toward immigration relative to the 1990s and early 2000s. In recent years, however, Americans’ desire for less immigration has ticked upward. Gallup attributed this to the recent increase in migrant encounters at the Southwest border.
The State’s Role in the Immigration Policy
As we’ve discussed, immigration enforcement falls squarely under federal jurisdiction. Not only is this the law, it makes sense. The separation of powers streamlines resource allocation, allowing the federal government to manage border security more efficiently with its superior defense and national security capabilities. Furthermore, national security and foreign relations matters require a uniform strategy rather than a disjointed patchwork of policies.
So, where do states fit it? State legislatures can work towards expanding access to health care, education, driver’s licenses, and other services to eligible residents of all ages, regardless of their immigration status. After all, immigrants, both legal and undocumented, contribute to the state economy and government revenue through various taxes (although without the ability to vote in state and federal elections).
There is also room for states to explore strategies to support the counties and municipalities in meeting the short-term needs of new immigrants. Lastly, states can provide resources to actively integrate immigrants into communities.
Texas has a long way to go, both in rolling back harmful laws and proactively welcoming immigrants to contribute to communities and the economy. Here are some of the ways that state leaders can improve the lives of immigrants:
Respect the Constitution and end racial profiling
Generally speaking, the Constitution requires states and localities to treat noncitizens just like citizens, with a few exceptions. State laws to enforce federal immigration policies, like SB 4, 88(4), are unclear and confusing, lack due process, criminiize what is generally considered a federal civil offense, have a high potential for racial profiling, and undermine effective policing by instilling fear in minority communities. States cannot be allowed to supersede national immigration authority by enacting their own laws.
Higher education
Texas is home to roughly 60,000 undocumented students in higher education (as of 2021), more than every state except California.
Data from the Presidents’ Alliance on Higher Education and Immigration show that 24 states — including Texas — and D.C. provide in-state tuition to the state’s undocumented students. Texas is also one of 18 states that provides undocumented students equal access to state financial aid. Texas must safeguard these policies for the thousands of students in higher education and those yet to come. Students and their families benefit from the earning potential of higher education, communities get an economic boost with student spending and housing, the state gets a more skilled workforce, and universities benefit by drawing more students.
Driver’s licenses
Data from the National Immigration Law Center (NILC) show that 21 states, D.C. and Puerto Rico allow residents to get driver’s licenses regardless of immigration status. Texas requires proof of U.S. citizenship or lawful presence to apply for a state driver license or I.D. card. Although there is an exception for DACA recipients, all other undocumented residents are prohibited.
Driver’s licenses are necessary for daily travel needs, such as school, work, and childcare; they work to improve road safety through mandated courses on traffic laws; and they remove barriers to obtaining auto insurance, which helps to increase customers for the insurance provider and lower premiums for drivers. Additionally, allowing undocumented residents access to driver licenses would create new revenue for state road maintenance through renewal fees and vehicle registrations.
Health care
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, also known as the welfare reform law, limited legal immigrants’ access to federal public benefits. This left states the authority to establish state-funded programs to fill the gaps for certain legal immigrants and to set eligibility requirements for undocumented and other non-qualifying immigrants.
Forty-four states cover or will cover residing children and/or pregnant people or offer prenatal care regardless of immigration status. In Texas, prenatal care is available regardless of immigration status through the CHIP Perinatal program. Additionally, lawfully residing children are eligible for children’s Medicaid or CHIP, depending on their income.
However, Texas denies federal Medicaid to most “qualified” (including those who are lawfully present) immigrant adults. Texas has an opportunity to include “qualified” and “lawfully present” adult immigrants in Texas Medicaid on the same terms as U.S. citizens, as 43 states already do.
Professional licenses
Federal law prohibits states from issuing professional licenses to undocumented immigrants unless the state passes a law expressly providing eligibility for professional licensure. Eight states allow qualified individuals, regardless of their immigration status, to obtain most
professional licenses, according to the NILC. Texas is a mixed bag; the state allows attorneys and accountants to obtain licensure without a social security number (SSN) or Individual Taxpayer Identification Number (ITIN), while licenses for other professions require a SSN or proof of lawful presence. Bottom line, many professions requiring state licensure do not have an affirmative corresponding law.
Worker protections
Although workplace abuses affect all Texas workers and occur in all types of occupations, immigrants often face unique challenges and vulnerabilities that can make them more susceptible to work-related violations. For example, immigrants in lower-wage occupations are often disproportionately affected by wage theft, even with basic protections under Texas law. A report by the Worker’s Defense Project found that it was common practice for employers in the construction industry — a $54 billion industry in Texas — to refuse to pay their workers, many of whom are undocumented immigrants. More than one in five Texas construction workers have experienced wage theft. Not only does this rob families of their hard-earned money, but it also robs the state of contributions to the local economy and tax revenue.
States (and cities) can play a crucial role in supporting worker rights. Beefing worker protections help immigrants, especially in fields where they are likely to work. For example, in 2021, Colorado and Pennsylvania passed safety standards and protections for agricultural workers, many of whom are undocumented immigrants.
In addition to strong enforcement of existing wage and labor laws, states can take important steps to reward good business practices. Employers who pay a living wage and provide their workers with medical insurance and retirement benefits should be rewarded and incentivized for their smart business strategies.
End broad preemption of city and county laws
Along those lines, states must allow counties and municipalities to enhance worker protections, like guaranteed water and meal breaks, raising the minimum wage, and implementing sick leave policies. Instead, recent sessions have seen the Legislature attempting to preempt city and county ordinances, undercutting their ability to respond to their communities’ needs. Some bills have even sought to restrict localities from collaborating with nonprofits providing immigration services.
Reimbursement to Counties
Counties along the Texas-Mexico border may bear the brunt of costs associated with newly arriving immigrants, including the costs of detention, indigent defense, and meeting short-term basic needs.
In Texas, counties are responsible for funding and administering indigent defense (court-appointed attorneys in criminal cases). The state contribution to county indigent defense programs is low, around 10% in 2019. Operation Lone Star’s (OLS) policy of arresting migrants crossing the border for criminal trespassing exacerbated indigent defense expenses and costs associated with the increased utilization of county jails. County officials’ testimony on SB 4 illustrated their need for the state to cease unfunded mandates on counties with laws and initiatives like SB 4 and OLS that force border counties to bear the costs of immigration enforcement when their primary focus should be on public safety. Some local officials asked the state to provide more funding to support border counties so that the costs of OLS and SB 4 don’t disproportionately fall on border residents.
Despite state law not mandating that counties provide temporary housing or shelter, many counties offer programs for homelessness and basic needs. The state legislature should provide avenues for additional assistance, such as grants, without politicization.
Conclusion
While immigration administration and enforcement are the federal government’s purview, states can still play a significant role in supporting immigrant communities. Despite the lack of comprehensive immigration reform since the 1980s, recent legislative actions and executive orders have attempted to address various aspects of immigration policy, albeit with limited success. Moving forward, Texas must prioritize the well-being of all residents, which include immigrant populations, by respecting constitutional principles, ending racial profiling, and providing access to essential services such as healthcare, education, and driver’s licenses. Additionally, states should support worker protections and support counties for the costs associated with newly arriving immigrants without politicization. By taking proactive measures and fostering inclusivity, states can play a crucial role in creating welcoming and supportive environments for immigrants, which benefits our communities and state economy.