The Fifth Circuit has its merits hearing on SB4

This is the big one.

A federal appeals court heard arguments Wednesday from Texas and the federal government about whether it should continue blocking a new Texas law that would let state police arrest migrants suspected of entering the U.S. illegally.

The three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans now has to rule on the appeal of a lower court’s injunction that stopped Senate Bill 4 from going into effect. The same panel decided to keep SB 4 on hold a week ago until it could rule on whether the law is constitutional.

The Biden administration and civil rights organizations sued Texas to stop the law, claiming SB 4 is unconstitutional because it interferes with federal immigration laws. The law’s proponents have argued that the law simply mirrors federal law, which they claim is not being enforced by federal authorities.

Texas Solicitor General Aaron Lloyd Nielson told the appellate panel on Wednesday morning that the law was crafted in a way that “goes up to the line of Supreme Court precedent,” and conceded it may have crossed that line.


Nielsen said Wednesday that under the law, Texas “doesn’t deport anybody.” He said police would take migrants to a port of entry, which are controlled by the federal government.

“Texas takes them to a port of entry and the United States then decides what to do,” Nielsen said. “That’s critical about this … it’s portrayed as Texas is ourself just like flying people off to some other place and that’s not accurate.”

Mexican officials have said they won’t accept repatriations from Texas. Mexico has agreements with the federal government detailing which migrants it will accept after they’re deported by U.S. immigration officials.

Biden administration lawyer Daniel Bentele Hahs Tenny pointed to a part SB 4 that requires a person to be returned to the country from which they entered the U.S.

“They now say, I guess, that you don’t actually have to do that, that maybe you just go to the port of entry and that’s good enough,” Tenny said.

See here and here for the most recent updates. The arguments here aren’t substantially different than those made in the hearing over whether to keep the temporary block in place. The main difference is that the state of Texas seems to have accepted that it’s not going to get a clear victory, so they’re trying to encourage the court to keep at least some of the law in place. Which could happen – I have no idea what the odds are of that, or how much of the law we could be talking about, but this is the Fifth Circuit and they do have a long history of giving Ken Paxton what he wants. The real question is how long it takes them to hand down their opinion. CNN and TPR have more.

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