The Fifth Circuit remains extremely on brand

Of all the Fifth Circuits in the world, they’re the Fifth Circuitest.

A new law empowering state authorities to arrest and deport migrants seeking asylum in the United States may soon take effect after an appeals court stepped in to override a lower court order blocking the law.

The 5th U.S.Circuit Court of Appeals’ order would set aside the lower court ruling in seven days. If the Supreme Court does not intervene by then, the law, known as Senate Bill 4, could take effect while the legal battle over whether it is constitutional plays out in court. The conservative appeals court did not explain the decision, issued Saturday.

The law, passed last fall by the GOP-led Legislature, would push the bounds of state enforcement of immigration law long left solely to the federal government. The law would make it a crime to enter the state from Mexico without permission, and it would allow any law enforcement officer in Texas to arrest migrants they suspect of entering illegally and empower judges to order their removal.


Stephen Vladeck, a law professor at the University of Texas at Austin, said the 5th Circuit appeared to be forcing the Supreme Court’s hand.

“Just to drive this home, the Fifth Circuit is effectively *forcing* #SCOTUS to rule *by Saturday* on whether it will allow the most aggressive attempt by a state to create its own immigration policy to go into effect,” Vladeck wrote on social media. “Another high-stakes emergency forced by the court of appeals.”

See here for the background and here for Prof. Vladeck’s commentary, which includes an image of the order, which calls for an expedited hearing on the merits of the case but didn’t specify a date. Forcing SCOTUS to take action was always the plan here, since as noted existing precedent from the ancient days of 2010 would make this a slam dunk for the feds. But SCOTUS has different members now, and its majority is happy to throw out precedents it doesn’t like, so why not shoot the moon. It’s utterly cold blooded, and it may well work. TPR and the Trib have more.

UPDATE: SCOTUS did the thing.

The U.S. Supreme Court temporarily halted a new state law on Monday evening allowing Texas police to arrest people suspected of crossing the Texas-Mexico border illegally from going into effect.

The nation’s highest court stayed a decision from the 5th U.S. Circuit Court of Appeals that would have allowed police to enforce the law as soon as this Saturday. Last Saturday, the New Orleans-based appeals court reversed a lower court’s ruling that had previously halted the new state law.

The Supreme Court issued a temporary stay until March 13 while the court considers whether it will allow the state to enforce Senate Bill 4.

Everything remains on a short timeline. We’ll see what happens from there.

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