Republicans have defended the law with incendiary language claiming migrants are invading the state, but a lower-court judge found no evidence of that and on Thursday blocked the law from taking effect.
Two days later, a panel of the conservative U.S. Court of Appeals for the 5th Circuit reversed that decision 2 to 1 without explanation, clearing the way for the Texas law to take effect this weekend unless the Supreme Court intervenes. However, on Monday evening, Supreme Court Justice Samuel A. Alito Jr., who oversees matters that originate in the 5th Circuit, put the law on hold until at least March 13.
Solicitor General Elizabeth B. Prelogar had earlier in the day urged the justices to wipe out the appeals court decision, warning that the law could impose “profound harms” on U.S. foreign policy and federal immigration laws.
“Absent this Court’s intervention,” she wrote, “SB4 will go into effect at 12:01 a.m. on March 10, 2024, profoundly altering the status quo that has existed between the United States and the States in the context of immigration for almost 150 years.”
On Monday, Texas Gov. Greg Abbott (R) said on X that the state was preparing to enforce the law, “unless the Supreme Court intervenes.”
The Texas legislature passed S.B. 4 last year as part of Abbott’s push to expand the state’s role in border security, which historically has been the responsibility of federal law enforcement agencies. The statute criminalizes illegal migration as a misdemeanor, punishable by up to six months in jail. Anyone accused of reentering the country illegally could face felony charges. Lawmakers also empowered state judges to order deportations to Mexico and allow local law enforcement personnel to carry them out. Judges could also drop the state charges if the migrant agrees to return voluntarily.
A pair of immigrant advocacy groups, the Las Americas Immigrant Advocacy Center and American Gateways, sued along with El Paso County and the Biden administration to block the law from taking effect.
On Thursday, days after holding a hearing, U.S. District Court Judge David A. Ezra in Austin issued a 114-page ruling that signaled the state law is likely unconstitutional and “could open the door to each state passing its own version of immigration laws.”
Texas appealed to the 5th Circuit late Friday, seeking an administrative stay of Ezra’s order blocking the law. The appeals panel issued its decision about a day later, giving the Biden administration seven days to appeal to the Supreme Court.
Ezra’s ruling came on the same day President Biden and former president Donald Trump, who is again seeking the White House and is the leading Republican candidate, made separate visits to the southern border, each emphasizing their policies on immigration. After that visit, Trump, who favors aggressive immigration enforcement, told Fox News that Abbott is a possible contender to become his running mate.
“He’s done a great job,” Trump said, according to the Dallas Morning News.
The 5th Circuit decision sets the stage for another Supreme Court ruling to settle an ongoing debate about Texas’s border policies.
The Biden administration has notched several victories in recent years, despite the conservative tilt of the Supreme Court, which has a 6-3 supermajority with three conservative justices appointed by Trump. In January, the Supreme Court voted 5-4 that the Biden administration could remove razor wire that Texas had installed on the U.S.-Mexico border, until the courts determine if it is legal for the state to erect its own barriers.
In June, the Supreme Court ruled 8 to 1 that Biden has the authority to set the federal government’s immigration enforcement priorities, rejecting a lawsuit filed by the states of Texas and Louisiana that said the U.S. government should target all undocumented immigrants for deportation.
And in 2022, the Supreme Court ruled 5-4 that the Biden administration could end a Trump administration policy that required asylum seekers to await their hearings in Mexico.
In court filings Monday, Prelogar said the Texas law tramples on federal responsibilities that Congress has laid out; could inflame tensions with Mexico, the largest U.S. trading partner; and could lead to the deportation of migrants whose lives are in danger, a violation of federal law.
The Texas law, she wrote, “prevents the Nation from speaking ‘with one voice’ in matters involving foreign affairs.”
The Supreme Court rulings reinforcing that immigration enforcement is a federal responsibility have not deterred Texas and other states from challenging Biden’s border policies. Officials in those states say their communities have been upended by record numbers of migrants being taken into custody at the southern border since Biden took office in 2021, with many released to await asylum proceedings in the United States because of a lack of detention capacity and strict rules about who can be deported.
Officials say they are acting because Biden has failed to control the border.
Abbott has deployed the state National Guard and state troopers to guard the border, urged state law enforcement agencies from other states to join them, and cordoned off the Rio Grande with miles of razor wire to prevent adults and children from crossing illegally. He has also paid to bus tens of thousands of migrants to cities such as New York and Chicago, forcing local governments to pay millions to shelter and feed them.
The Biden administration and other plaintiffs contend that S.B. 4 gives law enforcement overly broad powers to arrest anyone they suspect of having crossed the border illegally, no matter how far they live from the border itself or the details of their immigration status.