Three years ago, Texas lawmakers passed a landmark law that would let state police arrest people suspected of having entered the country illegally by crossing the border.
Such authority has long been the sole responsibility of the federal government, but the state’s Republican leaders said Texas, which shares about 1,250 miles of border with Mexico, had a constitutional right to protect its sovereignty as the number of illegal border crossings hit record highs under the Biden administration.
But when a federal appeals court reheard oral arguments Thursday in a legal challenge seeking to stop Texas’ law from going into effect, the circumstances outside the courtroom were much different.
The number of people crossing the border has dwindled to a trickle during President Donald Trump’s first year back in the White House, setting record lows in a sharp reversal from the influx that inspired Texas’ law, known as Senate Bill 4. The new reality on the ground could complicate Texas’ legal argument that it has a constitutional right to defend itself against an invasion, like the one state lawmakers claimed was afoot when they enacted the law. The case carries high stakes for the future of immigration enforcement and the role states are allowed to play.
For Texas, a court ruling in either direction could present a victory. It is not clear when the court will issue a ruling.
If the Fifth U.S. Circuit Court of Appeals, after hearing Thursday’s arguments, removes the injunction that has blocked SB 4 from taking effect, the state would further solidify its already outsized role in immigration enforcement. If the court keeps the injunction in place, Texas authorities would still be poised to continue the starring and unprecedented role they have played in aiding the Trump administration’s immigration crackdown, even with SB 4 off the books. And state GOP leaders would almost certainly appeal to the U.S. Supreme Court, giving them a possible forum to reconfigure legal precedent that largely prevents states from enforcing immigration law.
“What is at stake most importantly is the ability of migrants to live and feel safe in a state where they have contributed deeply,” said Denise Gilman, a law professor who co-directs the Immigration Clinic at the University of Texas at Austin. “It really could be a watershed moment for how we think about immigration and noncitizens in general in Texas.”
Legal experts say the most pertinent development that could affect the case is the defection of the U.S. Department of Justice, which filed the lawsuit to block SB 4 under the Biden administration before dropping its challenge last year after Trump took office.
SB 4 would make it a state misdemeanor to illegally cross the border and authorize Texas officers to arrest undocumented immigrants. It would also require state magistrate judges to order people arrested for illegal entry — a new state charge created by SB 4 — to leave the U.S. for Mexico in lieu of prosecution, or if they are convicted.
The Biden administration swiftly moved to block the law, arguing in a suit filed weeks after SB 4’s passage that the measure was unconstitutional because the policing of immigration — including oversight of who is allowed into the country and the removal of people without proper documentation — rests in the federal government’s hands alone.
The legal challenge has continued through a case brought by a group of civil rights organizations and El Paso County. Last summer, a three-judge panel from the Fifth Circuit upheld an injunction blocking SB 4, reinforcing a lower court’s finding that the federal government is the main enforcer of immigration law.
The state of Texas appealed, asking to have the case reheard by the entire circuit court, which made the rare move of granting the request. The conservative circuit court — which hears appeals from Texas, Louisiana and Mississippi — has 17 judges, 12 of whom were appointed by Republican presidents, including six by Trump.
Legal experts said the federal government’s switch presents a key question for the court: Do the remaining parties have a legal right — or “standing” — to challenge the law before it has gone into effect, now that the federal government is no longer claiming a conflict?
Texas has argued that the plaintiffs do not have standing because the law has never taken effect, offering no chance for anyone to be affected by it. The state also argues that it has a right to defend its sovereignty because the record migration under Biden amounted to an invasion — a novel legal argument that courts have historically rejected or refused to wade into.
See here for the most recent update. I’m going to cut to the chase here and say that this law should be struck down, the position and intent of the next Democratic President should be to abolish ICE, and the rhetorical stance towards this law and its consequences should be that it is an inevitable step on the path towards all of the lawless thuggery we have seen over the past year. That includes the ability of fascist wannabe Governors to send their National Guard unwanted and unbidden into other states to abet the ICE atrocities. We don’t need hypotheticals to illustrate the dangers of laws like SB4. We’re living in that scenario now.