Texas law on hold

New Texas law allowing police to arrest migrants back on hold

The U.S. Supreme Court denied Biden administration’s request to block S.B. 4, but an appeals court later restored an injunction against the measure.

By JOSH GERSTEIN and KIERRA FRAZIER

The Supreme Court on Tuesday gave Texas the go-ahead to enforce a new state law authorizing police to arrest and detain people for illegally crossing the border from Mexico, but hours later a federal appeals court reinstated an injunction blocking the law from being implemented.

The Texas law was supposed to go into effect March 5, but was paused by the high court for two weeks while the justices considered emergency requests from the Biden administration and immigrant rights groups to keep the statute on ice while legal challenges proceed arguing that the measure intrudes on federal authority over immigration.

On Tuesday afternoon, the Supreme Court — over the dissent of three liberal justices — turned down the requests to put the law on hold. However, late Tuesday night, a panel of the 5th Circuit Court of Appeals voted, 2-1, to restore the preliminary injunction a district court judge granted preventing Texas officials from enforcing the statute.

Both actions came just hours before the appeals court is scheduled to hear arguments on the issue by videoconference Wednesday morning.

Chief Judge Priscilla Richman, an appointee of President George W. Bush, and Judge Irma Ramirez, who was nominated by President Joe Biden, joined in the order Tuesday night restoring the earlier injunction against the law. Richman and Ramirez did not explain their reasoning.

Judge Andrew Oldham, an appointee of President Donald Trump, dissented. Oldham argued that preserving the “status quo” in the case called for allowing the law to go into effect because the injunction had the effect of altering the normal legislative process.

Neither court’s action amounted to a definitive ruling on the law’s constitutionality. It’s possible the law could be restored, as Texas officials are seeking, by as soon as Wednesday. The issue also appears likely to return to the Supreme Court fairly soon.

The appeals court’s unexpected late-night order capped a day where Texas officials had been celebrating the Supreme Court’s ruling before the lower court stepped in again.

Texas Attorney General Ken Paxton, who has played a major role in the state’s battles with the federal government over immigration, celebrated the Supreme Court’s order as a “huge win” in a post to X, formerly known as Twitter.

“As always, it’s my honor to defend Texas and its sovereignty, and to lead us to victory in court,” Paxton said.

While the high court’s ruling Tuesday was a setback for the Biden administration, there were signs a majority of the high court might be persuaded to block the law in the near future. Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, said they would consider the issue anew after the 5th Circuit issues a more formal decision on whether the law can stay in effect.

The law, known as Senate Bill 4, was signed by Republican Gov. Greg Abbott in December and allows law enforcement to arrest migrants and charge them with a misdemeanor on the first offense if they are suspected of crossing the border illegally. During the court process, migrants could be ordered to return to Mexico or face prosecution if they didn’t agree to return.

However, Mexico’s government said Tuesday it would not “under any circumstances” accept the return of any migrants from the state of Texas, the Associated Press reported.

Justice Sonia Sotomayor, in a dissent joined by Justice Ketanji Brown Jackson, called “unreasoned” the appeals court’s decision to allow the law to take effect. Sotomayor said the Texas statute would invite “further chaos and crisis at the border.”

“The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional,” Sotomayor wrote.

Sotomayor, the most senior liberal justice, also took aim at the 5th Circuit for effectively stalling in sensitive cases and suggested the conservative appeals court might be seeking “to evade effective review” by the Supreme Court.

“The Fifth Circuit recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months,” Sotomayor complained.

Kagan wrote separately to say the Texas law intruded on “matters long thought the special province of the Federal Government.” She saw no reason to wait for further action by the appeals court.

Barrett’s opinion suggested there was some force to the liberals’ complaints but concluded it was “premature” for the Supreme Court to step in now.

The legal showdown over the Texas law comes as the Biden administration and Texas continue to clash on border policy and the influx of migrants at the border has sparked nationwide controversy.

The federal government and immigration advocacy organizations argue that the state law conflicts with the federal government’s immigration policy and violates the Constitution’s supremacy clause, which says that federal laws preempt conflicting state laws.

Before the appeals court acted Tuesday night, the Biden administration released a statement saying they “fundamentally disagree” with the Supreme Court order.

“S.B. 4 is just another example of Republican officials politicizing the border while blocking real solutions,” White House Press Secretary Karine Jean-Pierre wrote. “We remained focused on delivering the significant policy changes and resources we need to secure the border — that is why we continue to call on Congressional Republicans to pass the bipartisan border security agreement, the toughest and fairest set of border reforms in decades.”

Advocates including the ACLU also contended in court filings that the Texas statute would “ harm Black and Brown people regardless of their immigration status” because of the wave of law enforcement action the new legislation would likely unleash.

“Families and individuals throughout Texas will suffer grievous harm starting as soon as S.B. 4 takes effect, as they will be separated from loved ones and denied the humanitarian protections provided by federal law,” Las Americas Immigrant Advocacy Center and American Gateways said in its emergency application asking the Supreme Court to block the law.

The Texas ACLU responded on social media after the high court ruling Tuesday, saying, “We won’t back down until this extreme anti-immigrant law is struck down for good.”

Texas state officials argued in court filings that the state “is the nation’s first-line defense against transnational violence and has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”

“The Constitution recognizes that Texas has the sovereign right to defend itself from violent transnational cartels that flood the State with fentanyl, weapons, and all manner of brutality,” Paxton and other officials told the Supreme Court.

Texas is embroiled in two other major court battles with the DOJ over the state’s use of razor wire and floating buoys designed to block migrants from entry. In May, the full bench of the 5th Circuit will rehear the case involving access and river border buoys, allowing the floating barrier to remain in place in the meantime.