The Texan Podcast - Interview: Sen. Charles Perry on Border Security Bill SB 4

Episode Date: March 26, 2024

Senator Charles Perry (R-Lubbock) sat down with The Texan’s reporter Matt Stringer to discuss Senate Bill (SB) 4, the border security legislation that Republican lawmakers passed last year that is currently caught up in an ongoing court battle.SB 4 was authored by Perry in the Senate and Rep. David Spiller (R-Jacksboro) in the House, and passed during the fourth special session in November.“It’s very clear the states have the right to defend themselves, and that’s the heart of SB 4,” said Perry. “We’re not challenging federal supremacy. We’re saying you got supremacy. You just chose not to do anything with it. We’re going to take that role for you.”

Howdy, folks. Senior Editor Mackenzie DeLulo here. Today, reporter Matt Stringer sat down with Senator Charles Perry to discuss Senate Bill 4, the border security legislation that Republican lawmakers passed last year that is currently caught up in an ongoing court battle. They discussed the provisions of the bill, the intent behind the legislation, and its prospects as the legal fight makes its way to the Supreme Court. Thank you for listening, and we hope you enjoy this episode. Well, Senator Perry, we're pleased to have you join us for the first time here on The Texan. You are, of course, the Senate author of Senate Bill 4,

which is the new state law creating a crime for foreign nationals who enter the country illegally, and it creates a mechanism for state judges to provide for their deportation. The law has drawn a lot of controversy, with opponents characterizing it as a violation of the federal government's role in regulating immigration. But your side has said that that isn't the case at all and that, in fact, the law is rooted in another source of constitutional law. I'd like to begin by discussing with you exactly how the law works so that we have a good understanding of the mechanism in place, and then I'll ask you about the source of constitutional law that you say supports it. Yeah, well, I appreciate Matt being here. And, you know, texting is a fun article to read every morning. And you guys do a good job.

Your reporting is usually pretty factually accurate and balanced. So I appreciate that. SB4 in practice is, and let me set an umbrella here. If you enter through a legitimate port of entry, SB4 doesn't apply to you. I think that's gotten lost. Everybody's raising all these scenarios where people are going to be arrested. And if you come in between those port of entries illegally, i.e. you're not coming through the port of entry, SB4 does apply. And it applies pretty specifically to the scenario on the border. If you see someone come in between those port of entries through the river or over land,

then you would be subject to SB4. The first offense when you have that encounter is up to a six-month jail felony. You go through the state magistrate, and they will make that determination. But if you choose to go back, we will take you up to that border and send you back. So sort of a voluntary mechanism. Yeah, I think it's a second chance. You want to try to find ways in our legal system to always give a second chance because sometimes people don't know or people just make crazy decisions or thought they were going to do something and ended up deciding maybe this isn't the best course of action. So it grants that person the opportunity to go back and we

would expedite them back to that border entry where it is legal to come in and out of and hopefully they would participate in going back over. The second version of that is if you come in, you're deported and then come back and caught, that could be up to a 20-year jail felony. And so we're serious about trying to secure that border through the civil legal means that we have. And I've had a lot of conversation around, well, that means that your local law enforcement in No Trees, Texas could be an enforcement. Well, truthfully, if they pull you over for something or find an infraction for something other than this particular issue specifically, but in that background check they find out that you have in that first option been deported and you chose to be back, and there's a documented because under SB4 you would actually be background checks, see if you're a criminal already, if warrants are outstanding.

You would also be fingerprinted and logged into the system. So there would be a record of you having been deported once, and now you're back. Obviously, you've committed the second part of that bill. So it's a serious bill. It has teeth in it. It has consequence in it for the right reasons. But it amazes me we have legal ports of entry,

and it's important for people to use those. And the reason it's important for them to use those is because we have control ports of entry, and it's important for people to use those. And the reason it's important for them to use those is because we have control then of who you are, what you need, where you're going, why you're coming, and if you're qualified to come in. And so it's that funneling, if you will, of where resources are there to protect those folks as well as to protect the citizens of this country. And that seems to be lost, right? Just use the legal port of entry systems that we have. They don't do it. So that's where SB4 is going to kick in is if you come in between those ports of entry, Texas is going to arrest you.

One of the criticisms we hear is does it conflict anyway with current federal border policy? Yeah, absolutely not. And the reason it doesn't is because they're operating under a preemptive supremacy clause, right? That this is an issue that's 100% federal jurisdiction. Immigration is 100% federal jurisdiction. That's where Arizona had ruled. And so we didn't challenge the supremacy or the preemptive side that this is not a federal. This is a federal issue, but in the same constitution that created the supremacy clause, and the same one that says you can only

have this at the federal jurisdictional level addressed, in the same constitution, in the same article sections, if you just move around a little bit, it says clearly, if you don't do this as a federal government, if you don't do your obligation, supremacy comes with the obligation, right? If you don't do this as a federal government, if you don't do your obligation, supremacy comes with an obligation, right? If you do not fulfill your obligation to protect this country and the state, specifically our foreign and domestic enemies and our borders, if you don't secure those issues, then guess what? The states have the right, and it's very clearly, the states have the right to defend themselves.

And that's the heart of SB4. We're not challenging federal supremacy. We're saying you got supremacy. You just chose not to do anything with it. We're going to take that role for you. And that sort of segues into the area of constitutional law that you say supports the bill. It's not so much an immigration-related issue. It's more of a state self-defense.

It's a state's right. It's a federalism at its core. It's a state's rights issue. But it's one built on a constitutional provision that says the states may defend itself if there's an imminent threat without avail. And anybody, and the interesting thing is this narrative has went from there's no crises, there's no issues on the left, to now, to Governor Abbott's credit, when he imported those people into these other interior states and some of these cities, there became a national conversation awareness that's never been there. So we have been able to raise the conversation to a point that it's never been there, and those people are feeling our pain, so to speak, and they're understanding it. So we didn't challenge the federal government's role in this.

We just said you didn't fulfill your role, and therefore somebody, i.e. Texas in this case, is going to step up and fill that void. And I think that's where the narrative has gotten lost, because they always go to the easy one, the low-hanging fruit. They're challenging the federal immigration system, and that's federal only. So let's attack that. Truthfully, Senate Bill 4's heart is it could be an any issue. Immigration just happens to be the issue.

But if the states are threatened and the feds are not doing their job to protect them, the states have the right to defend themselves. It's just that easy. It's that clear. It's that simple and common sense. And the narrative is beginning to evolve. You can't let terrorist people watch people on the terrorist watch list in there. In layman's terms, when I'm talking to folks in a town hall, I said, when we say we caught 58 people on the terrorist watch list, what that means is those guys that went out on October 7th under the label of Hamas and destroyed a bunch of people in Gaza that day, that's the terrorist

we're talking about. And I'm also reminded that it only took 19 terrorists back in 9-11 to create havoc and chaos. It does not take many of those folks coordinated to create a problem. So it's important that we're doing this. And the reason SB4 is needed is it's the safety component. It's purely the safety component. You can throw in $12 billion of Texas taxpayer dollars since 2011, direct taxpayer dollars. That doesn't include schools, Medicaid, ER, criminal justice costs. That's actual dollars Texas has written checks for. So it's all of those factors, but it's hard. We've got to protect the citizens of the state and the citizens of this country. And that's real. That's not a political soundbite. That's a real issue. We, of course, report on constantly transnational crime occurring at the border,

human trafficking, human smuggling, narcotic smuggling. A lot of these things are being cited by state officials. Of course, during the legislative process for SB4, let's take a step back to the 88th legislative session. We have the general session in the spring, but Governor Abbott ended up calling multiple special sessions, and it wasn't until, I believe, the last one that SB4 actually managed to pass. Could you walk us through sort of the legislative history and why it took so long for SB4 to go through? You know, we had our versions in the Senate, and the House had some versions, and as part of that process, those two need to agree. And for a lot of other politics involved, that was not done until the fourth session. Representative Spiller, actually, so we were at a stalemate on border,

and clearly the people of this state that are paying attention had said, this is a priority for us. And you can't deny, politically speaking, this has not reached a level of almost every voter in the country now is talking border usually is their number one security issue or number one issue to be dealt with. So it was not an option to leave however many sessions it took. You know, vouchers for schools are public choice,

as you have everyone to phrase it. That, along with border, was two things that we were supposed to get done, and we got the border deal done. Senator Birdwell had drafted a bill that was moving us in the right direction. He was not wanting to do the next level of that bill in the fourth. He just, you know, the next level of that bill in the fourth. He just, you know, I think he had had a whole session of border chairman and lots of conversations and things. So I had just volunteered. I had carried Senate Bill 4 in 13 or 15 over sanctuary cities. So I was familiar with that term and that turf.

You carried some similar legislation. Similar legislation. I said, it's in my wheelhouse if you need somebody to pick up a deal. So with that conversation, it went to you get it done. Lieutenant governor had some very clear directives. He wanted to see that fingerprinting and those folks logged at first encounter level. And I think that's smart, right? Because so he had some pretty close role to play in crafting the legislation. He was very clear on what he wanted the bill to do. Then there was other people, right?

And so to Representative Spiller and I, I called him up and I said, you want to get a bill done. And it's got to be a bill that does something and it's significant and it's as close as we can make it fit the purpose, which is defend and not be an immigration control system. It was more we're defending it. That's a tool. And to his credit, we sat in a room. Truthfully, it was a bicameral. I mean, House and Senate were sitting in a room with chiefs of staffs on all fronts. Speaker's

chief was there. Darrell was there. The lieutenant governor. We just sat around the room and said, let's just start from scratch. Let's assume we now know what everybody's expectations are, do what we have, does what we have that we've kind of worked on, get this there, or can we modify it to fit it, or do we need it? And we literally started with a blank page. And within two days, we had a bill that SB4 is pretty close to. And, you know, I think that says something. When you cull it down to what the purpose and what the constitutional revisions allow you to do, it got really clear.

We're talking about defending ourselves. You can say it's an invasion. You can say it's not. I'd argue it is. Everybody can make that argument. But that's that comma where it says, under threat of imminent domain, it is imminent without avail, is the crutch of the Senate Bill 4.

There were several members involved on both sides. It was nice to see a House and Senate conference, if you will, working through a bill in detailed with very clear directives of where we were going to land, and it worked. It worked like a charm. So that's what I was familiar with when I used to be in the House. We worked well. We've lost a little bit of that. We'll get it back, I'm sure. But on this bill, it was truly a good process of how legislation should work. Very interesting on the background, legislative background there. Of course, the law was immediately met with a battery of legal challenges, notably drawing

attention to how the federal courts have taken us court watchers on a bit of a roller coaster with injunctions, stays, order lifting stays. Can you walk us through what's transpired? And today on Thursday, March 21st, where does the law stand now? You know, I'm not an attorney. I don't, and by choice, I chose not to do that. It's an interesting field for sure, but it also reflects there's no consistency anymore in anything that we seem to deal with and I would thought judiciary was that one place you need to have some consistency so first of all the fifth asked for expedited hearing at the SCOTUS level and punted it real quick and and I was glad to see that because that was the ultimate goal is to get a SCOTUS ruling on it right and it went up and it kind of

lingered for a week or two and then they extended the stay and did a couple things, and then they came out against it on Monday, I think it was. And we're like, well, okay, it's expected, but they'll kick it back down and we'll have the merits of the case on the defense of Texas right to defend itself, and we'll be all right. And then fast forward to Tuesday, and all of a sudden it's good. Just go ahead and implement the bill. So, you know, the lay person that I am looking at, well, the highest court in the land just ruled that it's okay. So I'm thinking we're pretty good.

I know the fifth's got a case out there kind of pending on it, and I thought they'd just kind of come together and say, hey, you know, highest court in the land ruled on this. We're going to punt and move on down the road. Leave it in place while. Yeah, it didn't, right? So we'll see where it lands. I'm not here to predict where those legal minds of the day at the 5th are going to be. And I can't predict their timing on it.

I think they do have, from their actions, indicated they're going to move it fairly quickly. Did you get a chance to listen to the oral arguments? I did not. I was doing CPA work yesterday. Well, I was at the TPPF Policy Summit listening in one ear through my headphones to oral arguments while listening to Governor Abbott. So it was a very interesting day. I had a soundbite or two from one of the panelists, and they were focused on immigration enforcement, and that was disappointing.

So I hope that out of the three, two of them will get to the heart of SB4, which is the state's right to defend itself. And we've got to keep hammering that at every level. You could substitute any of those issues into this conversation outside of immigration that requires federal to do jobs, and when it doesn't, can the state step in? So I hope that there's an honest conversation around what does SB4 do, what is it needed, why is it needed, and how does it get there constitutionally? And if it does, nobody can underestimate what we're facing as a country at that border

and the damage that it's causing today and the more damage that it will have in the future that's yet foretold. And when I say that, you don't have any of those guys that didn't get caught that are setting up sleeper cells. So there's a real consequence to not acting. I'm sad that we're in this quasi-limbo again. It's not good. Uncertainty is not good.

But if you really get past the red herring of the world, you know, it's enforcement of immigration. No, that's a tool we've used or are going to try to use to protect citizens. But our right to defend ourselves is not defined on how we defend ourselves. We have to do whatever we can. And we've spent $12 billion of Texas taxpayers' dollars, direct spending, to figure out how to do this. Sort of looking ahead, if the federal courts do give the state of Texas a green light to enforce this before, do you believe the legislature's provided local law enforcement, particularly along the border, local prosecutors and jails,

with sufficient resources to enforce the law. We've heard a little bit of concern from some of the locals along the border that they might not necessarily have the resources, and is that something that you think might come up in the 89th Texas legislature? If the SCOTUS rules that way, then absolutely there'll be additional resources required, I think. And then it comes to, because we don't have enough manpower in state enforcement, you know, game wardens, DPS, Texas, right? There's not enough of those guys. But here's what the reality is. And this is the, this is, you would expect a deterrent effect. And it already was happening. There was a conversation, I'm told, over on the south side of the border that Texas is going to arrest us.

And so there was already kind of a chilling effect of that entry into the word Texas. So I don't think the volume of people that would be under SB4, and remember, first bite of the apple, they get to go home. So how much that is on the front end is yet to be told. It potentially could be a large number. But what we've seen is as Texas does its job of defending Texas borders, it pushes them. Unfortunately, it didn't solve the problem. It just pushed them to Arizona and California. So I don't know that we're going to be talking a volume that we can't manage under current resources.

Time will tell. But if we need more resources, this state has shown a commitment to securing that border. $7 billion in the two-year buy-in budget coming out of the session last session. So between special and budget, it's like 5.6 plus another 1.4, I think, or something. So we're spending the money, and we'll spend more money. We've got about 3,000 bed capacity today to house those people if they were arrested. So we've got a little bit of a cushion coming into the conversation that if we do have SB4 implemented and we start having those arrests, we do have capacity today. We will build out more capacity if that's what it needs.

But I think it'll be a deterrent. I don't think you'll see that volume of people that we've had and things that we've done have shown that. We did get a reaction from some Mexican officials recently after SCOTUS allowed the law to go in place temporarily, saying something along the lines that they wouldn't accept deportations. Is that something that you think the legislature is going to have to address on the 89th, or is that more something that Governor Abbott, through negotiations, is going to have to? I think it's all of the above, if that's the case. But it reminds you that we do billions of dollars of trade with Mexico every day or every year. And so when we had the inspection of trucks, that slowed trade down to a crawl. Our side hurt. Their side's almost catastrophic. They need that

trade. So if they want to go down that road, and here's the thing, they've got a history that they can do it with the Trump administration. So it's not that they can't do this. They can do this. So I think that if it really came push to come to shove and those folks that were returned couldn't go back, I think there's some issues internally for them to work that out because you're not taking your citizen back. But we have economic options that can put pressures on them to play nice with us. And then hopefully what it does is it will give them incentive to stop the south of their border, the Guatemalan and the South American and the others.

Hopefully if they can't know that it's a pipeline out, that they're going to meet resistance, they'll get better about doing it. And they did that under the Trump administration. They were better at making sure that folks weren't coming into their borders on the south. So it has a trickle down effect. I think it's a reality we need to consider, but how much they actually do, I'm suspect. I don't think that they'll, if we start threatening to cut off trade. That'll resolve that issue, you think? I say cut off trade. We can make trade slow. And we've shown that in the past, not by intent. And

we don't want to do that to our economy side. But if that's what it takes to get their attention to play like we need them to, then we will do that. I think that's an option. Very interesting. One last question. Do you have any predictions on how you think Senate Bill 4 will play out in the courts? You know, the 5th, I don't want to predict on it other than I think they had a – I think they understood they needed to move this to SCOTUS, and they did that.

I'm disappointed that they picked it back up in the way that they did it. If this narrative can get focused on the constitutional right of Texas to defend itself, I think we get a good ruling. I don't know how you argue against that because all the elements are there. We're under imminent threat. The country, not just the state, is going to have challenges because of that open border. So if you look at the facts and the statistics, the 400 million plus fentanyl, the human trafficking, now you've got, you're too young to remember, but there was a presidential race where someone had gotten out on bond and killed someone. It became the forefront of the campaign under Dukakis, I think it was.

You're going to have more of those issues because unfortunately that is becoming now something that people are recognizing that some of these people that have gotten in are actually killing our citizens in this country. So you're going to start hearing those things more and more. If you look at that aspect and set aside the supremacy clause because we didn't challenge it, we didn't say it's our job. We said we got to do something and this is how we chose to do it. If you really look at those facts, I think the fifth has to go with us. And here's the other side. They had a 6-3 ruling from the highest court of the land too. So you've got to take note of that. But assuming the Fifth can't get there, when it gets back to SCOTUS, how do they change their position without really kind of, you know, I know it's a little bit of a different we in the weeds, but at the end of the day,

they can't really reverse where they've sat on this issue. Because if they really felt strongly that it was only a federal issue and that it wasn't needed and the Constitution did not allow the state to do it, I don't think we'd have got a 6-3 ruling. So ultimately, if the conversation is centered around the right to defend, I think we're successful. I can't predict it's going to stay in that realm of conversation, but I think long-term and long-term in this world could be one month up to or one day up to three years. You know, I think we have a successful ruling on the rights of the state to defend itself. And that's a big conversation that SCOTUS has never really had to address. It is. We're walking into unprecedented constitutional territory.

I wish we weren't here. I wish we had a federal government that took their role seriously. And until then, the states have the right to do it. And we'll see where it lands. I don't have a prediction on the fifth. I think ultimately we do get a good ruling if you can stay focused on which piece of the Constitution do you want to apply. We didn't challenge the one you're arguing about. The one that we're arguing about, we can clearly show that we have all the elements met that we need to do it. Well, Senator, such an important topic of high interest, and we, along with the public, are grateful that you took the time to discuss and illuminate these important details surrounding this new law. And once again, we appreciate you joining us here. I appreciate

the opportunity, and I would just say I don't want the press to be one way or the other. I want it fair and balanced. This is needed for the safety of this country, plain and simple. That's what it's about. So we'll see where it lands. Absolutely. Thank you so much. Appreciate it.

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