A federal appellate court on Tuesday night ruled to continue to block a Texas immigration law that authorizes state and local authorities to arrest and deport undocumented migrants.
The decision comes after a legal whiplash over Senate Bill 4 (S.B.4), which was briefly allowed to take effect by the U.S. Supreme Court, then paused again by the Fifth U.S. Circuit Court of Appeals panel, while its constitutionality is still up for debate.
The law—which was signed in December by Texas Gov. Greg Abbott and faces legal challenges from the Biden administration and the ACLU—allows officers to arrest anyone they believe entered Texas illegally. It also would allow state judges to deport those people back to Mexico and make illegal crossing a Class B misdemeanor, which carries a maximum sentence of six months in jail.
Mexico has previously insisted that it would not accept migrants sent by Texas and has condemned the law it believes will create “substantial tension” in international relations.
“Enforcement of SB 4 would inappropriately burden the uniform and predictable sovereign-to-sovereign relations between Mexico and the United States, by criminalizing the unauthorized entry of noncitizens into Texas from outside the county and creating diverging removal requirements between and among individual states and the national government,” Mexico wrote in a Thursday amicus brief to the appeals panel.
On Tuesday, the 5th U.S. Circuit Court of Appeals panel ruled 2-1 to deny Texas’ request to enforce S.B.4, while the lower courts continue to debate whether it violates the Constitution.
The appellate panel consists of Chief Judge Priscilla Richman, who was nominated by George W. Bush; Trump nominee Judge Andrew S. Oldham; and Judge Irma Carrillo Ramirez, who was nominated by President Joe Biden. Richman and Ramirez ruled against Texas’ request to enforce the law, with the former writing for the majority that it is the president’s responsibility “to decide whether, and if so, how to pursue noncitizens illegally present in the United States.”
“The State is forever helpless: Texas can do nothing because Congress apparently did everything, yet federal non-enforcement means Congress’s everything is nothing,” Oldham wrote in his dissent. “And second, while the dispute before us is entirely hypothetical, the consequences of today’s decision will be very real.”
“The measures are almost certainly politically driven… to score political points with an issue that seems to help Republican lawmakers.”
During oral arguments, a Biden administration lawyer argued that S.B. 4 is unconstitutional because immigration enforcement is up to the federal government and is “fundamentally an international exercise.” He also cited a 2012 landmark Supreme Court decision that ruled an Arizona immigration law—which similarly tried to route immigration enforcement to local authorities—was unconstitutional.
The state of Texas, however, has insisted that S.B.4 is a necessary response to what it says is an “invasion” of migrants who have crossed the border.
“S.B. 4 is a modest but important statute,” Texas Solicitor General Aaron Nielson said last Wednesday. “It’s modest because it mirrors federal law. It’s important because it helps address what even the president has called a border crisis.”
Since S.B. 4 was passed, at least 10 other Republican-controlled states have scrambled to push forward similar hardline immigration legislation. It also has spurred outrage from immigration advocates who believe the bill—and similar bills it inspired—will lead to increased racial profiling and confusion for local law enforcement.
“The measures are almost certainly politically driven, part of a desire to confront the federal government and the Biden administration over supposedly failed policies and to score political points with an issue that seems to help Republican lawmakers, in particular,” Cristina M. Rodriguez, an immigration and constitutional law professor at Yale University, previously told The Daily Beast.
“And if the laws are allowed to go into effect, they will complicate and undermine the federal government’s enforcement of all of the immigration laws, including by undermining claims to protection or relief that immigrants may have under federal law, as well as by sowing confusion about who’s in charge.”
The fate of these bills may hinge on the future of S.B. 4, which is still facing an uphill legal battle. The Justice Department’s original lawsuit against the state of Texas is still pending, and the appeals process may result in the legislation ending up in the Supreme Court again.
