Showdown Between Texas Authorities and the Federal Government Headed to the Supreme Court

Showdown Between Texas Authorities and the Federal Government Headed to the Supreme Court

By Kate Melloy Goettel and Juan Avilez | Immigration Impact

A Texas law that allows local law enforcement to arrest migrants, state court judges to issue removal orders, and state officials to remove migrants to Mexico, is on its way to the Supreme Court.  

Texas Senate Bill 4 (SB4), which was signed into law in November and was set to go into effect on March 5, has become the source of heated litigation. Two immigrant rights organizations and the County of El Paso filed suit against the State of Texas in December, and the Justice Department separately sued Texas in January. Both lawsuits allege that  Texas is unlawfully assuming the role of the federal government with respect to immigration enforcement and removal.  

Last week, a federal judge in San Antonio, Texas, agreed: “SB 4 threatens the fundamental notion that the United States must regulate immigration with one voice,” U.S. District Judge David Ezra wrote. He preliminarily paused the implementation of  SB4, finding that it violates the U.S. Constitution by “preempting” federal law. 

Judge Ezra rejected Texas’ “invasion” rhetoric: “[T]o allow Texas to permanently supersede federal directives on the basis of an invasion would amount to nullification of federal law and authority—a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.” 

SB4 would create new crimes for non-citizens entering the state, or being found within the state, without federal authority. And the law would force state authorities to act even when a noncitizen is working to obtain immigration status or relief, such as through a pending asylum claim. The law requires state courts to issue removal orders—a role typically carried out by federal immigration judges—and for state authorities to remove noncitizens to Mexico.  

Following Judge Ezra’s order, the State of Texas immediately appealed to the Fifth Circuit Court of Appeals, which paused the lower court’s ruling. The Fifth Circuit’s stay would have allowed the law to go into effect on March 5th, but immigrant rights groups and the Justice Department asked the Supreme Court to undo that decision. The Supreme Court agreed, pausing the Fifth Circuit’s decision until March 13 while it more thoroughly examines the question. 

At issue before the Fifth Circuit and Supreme Court is the ongoing viability of a 2012 case, Arizona v. United States, in which the Supreme Court upheld the federal government’s “broad, undoubted power over the subject of immigration and the status of” noncitizens, striking down Arizona’s show-me-your-papers law, SB 1070.  That case affirmed more than a century of Supreme Court law upholding the federal government’s exclusive authority of immigration law and policy. 

Seemingly galvanized by the state-level enforcement provisions outlined in SB4—and the prospect of a run at the Arizona case in the Supreme Court—other legislators have taken inspiration from its passage by introducing legislation that mirrors many of the provisions contained within the bill. As is the case with SB4, these bills are misguided attempts at addressing the challenges at our southern border and are susceptible to the same legal scrutiny. Like SB4, these bills only serve as a short-term messaging gain for their sponsors and sow further distrust between immigrant communities and state governments.  

Arizona S.B. 1231H.B. 2821, and H.B.2748 create a state crime for entry into the state between ports of entry and provide civil immunity for local law enforcement in enforcing this bill. While S.B. 1231 has passed both Arizona state chambers, it was vetoed by Arizona Governor Hobbs this week.   

Mississippi S.B. 2284 and West Virginia S.B. 777 would similarly create new state crimes for entry into the state other than through a lawful port of entry. MS S.B. 2284 and WV S.B. 777 are currently in committee in their respective state senates. Other bills, such as Iowa S.F. 2340, copy the provision in SB4 that creates a new state crime for unlawful re-entry into the state. In addition, this bill would allow state judges to order those charged with this crime to be deported. The bill has passed both chambers of the Iowa legislature.  

At the state level, these bills would do little to address the chaos at our southern border while significantly eroding trust between local immigrant populations and their state government. As with SB4, the anti-immigrant messaging these bills convey means that immigrant-serving organizations are concerned about civil rights violations that could result.   

These bills would also damage the economy of the states that enact them. Research consistently shows that immigrants contribute significantly both at the state and local level. Business leaders are aware of the detrimental effects of these bills, with many calling out the bill sponsors for undermining the contributions that immigrants make.   

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