Fifth Circuit has its SB4 hearing

More whiplashing.

The chief judge on an appeals panel weighing whether to block Texas’ new migrant deportation law appeared skeptical that it does not run afoul of longstanding precedent leaving immigration enforcement solely to the federal government.

Questioning the state’s solicitor general, Priscilla Richman, the chief judge on the 5th Circuit Court of Appeals, read from a landmark Supreme Court decision from 2012 that held only the federal government has the power to enforce immigration laws. In that case, the high court struck down portions of an Arizona law that authorized police to arrest anyone suspected of being in the country illegally.

“Decisions of this nature touch on foreign relations and must be made with one voice,” Richman said, reading from the ruling.

“It goes on and on and on,” she continued. “It talks about the discretion — even if they’re here unlawfully, the United States can decide not to remove them.”

“It seems to me this statute washes that away,” Richman said of the new state law, known as Senate Bill 4.

The exchange came during a last-minute hearing before the 5th Circuit Court of Appeals, which quickly sprung to action after the U.S. Supreme Court declined to further delay SB4, allowing it to briefly take effect Tuesday afternoon.


Texas argued Wednesday that it is not trying to seize immigration enforcement powers. Texas Solicitor General Aaron Nielsen said the state is seeking to work cooperatively with the federal government to enforce immigration laws Congress has written, and that the state has tried to mirror those laws with SB4. The federal government is suing the state to block the law from taking effect.

“SB4 is a modest but important statute,” Nielson argued. “It’s modest because it mirrors federal law. It’s important because it helps address what even the president has called a border crisis.”

But Nielson repeatedly acknowledged that the state does not yet know how the law will play out, because no arrests have been made and no removal orders have been issued.

Richman, a George W. Bush-appointee, posed a series of hypothetical scenarios: What if the Border Patrol says it will release migrants with state removal orders back into Texas? What if someone who entered the country illegally in Arizona moves to Texas after living there for five years? If an asylum seeker arrives in Brownsville and is given a notice to appear in federal court, would they be exempt from arrest under the law?

Nielson referenced sworn statements submitted before the court in which a Department of Public Safety director overseeing operations in South Texas described how the agency plans to carry out the law.

But, Nielson acknowledged: “This is uncharted because we don’t have any cases on it.”


The U.S. Department of Justice argued SB4 is anything but modest and clearly runs afoul of more than 100 years of Supreme Court precedent.

Daniel Tenny, an assistant attorney general, argued Texas was trying to go even further than Arizona did, stressing that state judges would now have the power to decide if someone legally entered the United States.

“This entire scheme is exactly what the Supreme Court warned against in Arizona,” Tenny said. “The Supreme Court said the federal government has to have control over the immigration system.”

See here for yesterday’s chaotic turn of events. The three main takeaways here are that the law remains blocked, the Fifth Circuit panel will take however long they feel like taking to rule – could be days, could be months – and it’s possible they could block some or most of the law but not all of it going forward. Oh, and this is just about whether to keep the law paused pending further appeals; this is not yet a hearing on the appeal of the lower court’s ruling. There’s a hearing for that on April 3, per Law Dork.

I’m going to quote from some other coverage to give you a fuller picture of what happened. Here’s the Washington Post:

Circuit Chief Judge Priscilla Richman wondered during the hearing how the Texas law would work in practice, listing scenarios that could quickly lead to confusion.

“This is the first time, it seems to me, that a state has claimed that they have the right to remove illegal aliens,” Richman said. “This is not something, a power, that historically has been exercised by states, has it?”

State officials said they would not deport migrants directly but would hand off detainees to federal officials or take them to border crossings with Mexico.

Richman wondered: What if federal officials, as they have said, refused to carry out an order? What if a foreign national entered the United States via Canada and crossed through several states on their way to Texas. Could they be arrested and deported under Texas’s new law?


The brief order late Tuesday once again blocking the law did not explain the reasoning of the two judges — Richman, a nominee of George W. Bush, and Irma Carrillo Ramirez, a Biden nominee. The dissenting judge — Andrew Oldham, a Trump nominee — said only that he would have allowed the law to remain in effect before Wednesday’s hearing.

“It’s ping-pong,” Efrén C. Olivares, director of strategic litigation and advocacy at the Southern Poverty Law Center, said in a phone interview, describing the back-and-forth rulings.

Olivares said it is unclear how soon the three-judge panel will rule, since a preliminary injunction from a lower court halting the law remains in place.

The law makes it a state crime for migrants to illegally cross the border and gives Texas officials the ability to carry out their own deportations to Mexico.

How they will do so remains unclear. The Mexican government has said that it would not accept anyone sent back by Texas and condemned the law as “encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”

Mexican President Andrés Manuel López Obrador on Wednesday referred to the Texas law as draconian.

“It disrespects human rights. It’s a completely dehumanizing law. It’s anti-Christian, unjust. It violates precepts and norms of human coexistence,” López Obrador said. “It doesn’t just violate international law but [the teachings of] the Bible. I say this because those who are applying these unjust, inhumane measures go to church. They forget that the Bible talks about treating the foreigner well, and of course, loving your neighbor.”


After an hour of oral arguments, it seemed clear that the main question was whether a key swing vote on the three-judge panel at the 5th US Circuit Court of Appeals could be persuaded to join her more conservative colleague in allowing some of the law to take effect – even if other parts remain blocked.

The debate over whether to “sever” part of SB 4 featured most prominently when Circuit Judge Andrew Oldham, a conservative appointee of former President Donald Trump, suggested to an attorney for the Biden administration that there are parts of the law that do not overlap with federal authority on immigration. Oldham hinted that he disagreed with a district court’s move to block the entire Texas law instead of just parts of it.

Fifth Circuit Chief Judge Priscilla Richman, who was appointed by former President George W. Bush, picked up on that point later with Texas Solicitor General Aaron Nielson. She suggested that even if a federal judge was wrong to block the entire law from going into effect, the appeals court might not have to permit the state to begin enforcing every provision of the law.

“Yes, your honor, if you if you think that the removal provisions are problematic, and that maybe even some applications of the arrest provisions are problematic, the court would have the power … to modify the injunction going forward,” Nielson said. “At a minimum, I respect your honor, you should do that.”


A Justice Department lawyer said during Wednesday’s hearing that immigration policy is “fundamentally an international exercise” as he pressed to keep the law frozen.

DOJ attorney Daniel Tenny said implementing immigration policy involves collaboration with other countries. He was responding to a question from Richman, who asked him to address Texas’ assertions that the state law should be allowed to go into effect because the federal government is not doing a sufficient job carrying out US immigration laws.

Tenny said those claims were flawed both legally and factually.

You get the idea. Now we wait and see what the Fifth Circuit does, and what SCOTUS does after that. If you still want more, here’s Reuters, NBC News, KXAN, and the Trib.

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