Fifth Circuit leaves SB4 block in place


A federal appeals panel late Tuesday night declined to put Texas’s migrant deportation law back in effect, saying the state law seizes powers that are “likely reserved to the United States.”

The 2-1 opinion from the 5th Circuit Court of Appeals keeps the law on hold while a broader legal battle plays out over the constitutionality of the state’s new immigration enforcement scheme. The appeals court is scheduled to hear arguments in the case next week.

But the lengthy early ruling from the conservative appeals court is a sign of the uphill battle Texas Republicans face in convincing the courts the law, known as Senate Bill 4, does not run afoul of more than a century of precedent leaving immigration enforcement in the hands of the federal government.

Chief Judge Priscilla Richman wrote that even as the state is “nobly and admirably” trying to fill a “gaping void” in immigration enforcement left by a lack of funding and political will in D.C., “it is unlikely that Texas can step into the shoes of the national sovereign under our Constitution and laws.”

“For nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power,” Richman wrote. “Despite this fundamental axiom, SB4 creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal.”

The one judge on the panel to rule in Texas’s favor said the decision likely means the law will never take effect.

“We’ll likely never know how Texas’s state courts and its state law-enforcement officers would have implemented SB4,” Judge Andrew S. Oldham wrote.


Richman repeatedly pointed to a 2012 Supreme Court ruling that held that 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.

Richman said the Arizona ruling provides “considerable guidance” on whether Texas can succeed. She wrote that the Supreme Court in that case explained that a “principal feature” of the federal removal system is the broad discretion exercised by immigration officials. Those officials can decide whom to deport, and migrants can seek asylum or other forms of relief at any point in the process.

SB4’s provisions empowering state officials to make those decisions, Richman wrote, “significantly impair the exercise of discretion by federal immigration officials.”

“The broadest exercise of federal discretion is the Executive’s decision not to pursue either civilly or criminally the very noncitizens whom Texas has drawn a bead upon in enacting new state laws,” she wrote. “The discretion to pursue these same noncitizens likely lies exclusively with the Executive.”

See here for the previous update. This is what we’ve been saying all along, and at this point I’d expect the upcoming hearing on the merits of the initial injunction go along similar lines. The question as ever is what SCOTUS will do with it, whether they’ll respect this precedent, barely a decade old, or throw it out because there are different Justices on the bench now and the Republican Party really cares about this. We’ll find out eventually. The Associated Press, Law Dork, and the Current have more.

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