UPDATE: The Texas law that allows local police to arrest people suspected of being in the country illegally is blocked yet again after a late-night order Tuesday from the Fifth Circuit Court of Appeals.
Hours earlier, the U.S. Supreme Court had allowed the law to go into effect as the court case challenging it — filed by the Biden administration and immigrant advocacy groups — played out. But a three-judge panel at the Fifth Circuit decided to keep the law’s implementation on hold.
The appeals court panel is scheduled to hear arguments Wednesday morning over whether to keep the law paused while it considers the legal challenges.
Texas’ controversial immigration-enforcement law which allows local police to arrest undocumented immigrants can go into effect, the U.S. Supreme Court ruled on Tuesday.
The measure, Senate Bill 4, makes unauthorized entry into Texas a state crime. It also allows local judges to order a migrant charged under the state law to return to Mexico – regardless of where the immigrant is from.
Its implementation was temporarily blocked by U.S. District Judge David Ezra last month after lawsuits by the Biden administration and immigrant rights groups alleged the legislation is discriminatory and unconstitutional. The case is on appeal, but the Supreme Court’s decision Tuesday denied a request to keep the law blocked as that case plays out in the federal court system.
The lawsuit challenging SB 4 was filed by the American Civil Liberties Union of Texas and the Texas Civil Rights project on behalf of El Paso-based Las Americas Immigrant Advocacy Center, American Gateways, and El Paso County. It names Texas Department of Public Safety Director Steve McCraw and El Paso County District Attorney Bill Hicks as defendants.
The groups alleged that the law would lead to racial profiling of Texans across the state.
A separate lawsuit was later filed by the U.S. Department of Justice, and the two were consolidated. The lawsuits also alleged the law was unconstitutional because immigration enforcement is solely the responsibility of the federal government.
The legal battle is far from over as Tuesday’s action permits the law to go into effect – for now - as the case plays out. In her concurring opinion, Justice Amy Coney Barrett wrote that the Fifth Circuit Court of Appeals, which is scheduled to hear the case next month, did not put the law on hold pending the outcome of its decision.
“Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture,” she wrote. “But for the brief period of uncertainty—i.e., the time it takes the court to deliberate—the Fifth Circuit apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than those of erroneously lifting the injunction.”
In her dissenting opinion, Justice Sonia Sotomayor wrote the law would wreak more havoc on a troubled immigration-enforcement system.
“Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings,” she wrote. “That law upends the federal state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.”
The White House said it “fundamentally disagrees” with Tuesday’s decision.
“S.B. 4 will not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border. S.B. 4 is just another example of Republican officials politicizing the border while blocking real solutions.”
Senate Bill 4 was passed in late 2023 as part of a priority package of immigration and border security bills championed by Gov. Greg Abbott and others.
Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton said the law is necessary due to what they say are President Joe Biden's border policies that have led to a record number of asylum seekers entering the United States through Texas.
Paxton immediately cheered the decision on social media.
“HUGE WIN: Texas has defeated the Biden Administration’s and ACLU’s emergency motions at the Supreme Court. Our immigration law, SB 4, is now in effect. As always, it’s my honor to defend Texas and its sovereignty, and to lead us to victory in court,” he posted.
Immigrant rights groups meanwhile blasted the decision and said they would keep fighting its legality.
“We disagree with the court’s decision and the implementation of this unconstitutional and extreme anti-immigrant law will likely be disastrous for both Texans and our legal system,” said Adriana Piñon, legal director at the ACLU of Texas. “S.B. 4 threatens our most basic civil and human rights as citizens and non-citizens alike and we recommend anyone threatened by this, including people who fear racial profiling, to remember their rights. We will continue our efforts to halt this hateful law.”