AUSTIN, TX — The U.S. Supreme Court on Tuesday gave Texas permission, for now, to enforce a new law allowing state and local police to arrest undocumented immigrants.
The ruling will not be the final word on the fate of the law known as Senate Bill 4, which has been ruled unconstitutional by a federal judge in Austin and is awaiting action by the 5th U.S. Circuit Court of Appeals in New Orleans.
Nor will Tuesday’s action be the final ruling on whether Texas can enforce the law while the state’s bid to overturn the judge’s ruling continues in the appeals court.
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The court’s three liberal justices disagreed with the ruling, with Justice Sonia Sotomayor writing that it “invites further chaos and crisis in immigration enforcement” by allowing Texas to enforce its new law even though its constitutionality has yet to be determined.
“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” Sotomayor wrote.
SB 4 allows local law enforcement to arrest migrants who have entered the country illegally and allows state judges to give deportation orders to migrants – actions that fall under federal, not state, jurisdiction, the Biden administration argues.
Tuesday’s ruling hinged on the 5th Circuit Court’s use of an “administrative stay” to allow Texas to enforce SB 4.
Administrative stays are intended to briefly pause a lower-court ruling while an appeals court determines how to proceed, including whether to enforce – as in this case – a lower-court’s injunction barring enforcement of a law.
The next step is typically a decision on whether to grant a “stay pending appeal,” which would determine whether an injunction can be enforced until the appeals court rules on the law’s constitutionality. Those stays require the court to consider who is likely to win the legal challenge over SB 4, an analysis that could take time that an administrative stay is supposed to provide.
The problem for the Supreme Court, Justice Amy Coney Barrett wrote for the majority, is that it has never been asked to analyze an administrative stay – and it should avoid taking this opportunity to review such a short-term ruling, she added.
“I think it unwise to invite emergency litigation in this Court about whether a court of appeals abused its discretion at this preliminary step — for example, by misjudging whether an administrative stay is the best way to minimize harm while the court deliberates,” she wrote.
The “real problem ... lurking in this case,” Barrett added, is the risk that a court will avoid ruling on a stay pending appeal for too long. Should that occur in this case, she wrote, the Department of Justice can return to the Supreme Court for guidance.
The 5th Circuit Court is scheduled to hear oral arguments on SB 4 on April 3 at 9 a.m.
The Justice Department sued Texas in January, saying immigration enforcement is a federal obligation that Texas is trying to usurp.
Texas officials argued that SB 4 is a necessary response to an “invasion” of undocumented immigrants at the southern border that the Biden administration has done little to stem.
Texas has asked the appeals court to overturn a February ruling by U.S. District Judge David Ezra, who said SB4 was “patently unconstitutional” because states do not have the power to enforce immigration matters.
“To allow Texas to permanently supersede federal directives on the basis of an invasion would amount to nullification of federal law and authority — a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War,” Ezra wrote.
SB 4 created two state crimes for migrants who cross into Texas illegally — illegal entry from a foreign country, a Class B misdemeanor with a jail term of up to six months and a $2,000 fine; and illegal reentry into the state from a foreign country, a Class A misdemeanor with up to one year in jail and a $4,000 fine for repeat offenders.
The penalty for both could escalate to felonies for migrants who had previously been convicted of certain crimes, including a felony or two misdemeanor drug convictions.
The law also allowed state judges to issue deportation orders for migrants who agree to return to the foreign nation from which they entered Texas – presumably Mexico.
The Texas Legislature passed SB 4 in November and Abbott signed it into law in December.
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