Texas SB4 could upend 100 years of US immigration law by empowering states
| Austin, Texas; and Denver
Immigration enforcement at America鈥檚 southern border teetered on the edge of an uncertain new era Tuesday, as a flurry of rulings from federal courts grappled with whether a controversial Texas law can temporarily take effect.
Texas Senate Bill 4, or SB4 for short, makes it a state crime to enter Texas illegally. Amid court challenges from the Biden administration and others, however, the state has never been able to enforce the law. As recently as early Monday evening, Justice Samuel Alito extended a stay preventing SB4 from going into effect.
But less than 24 hours later, an unsigned ruling from the full Supreme Court effectively reversed that order. If that wasn鈥檛 enough whiplash, hours later, a federal appeals court announced it would be hearing oral arguments concerning a more permanent stay of SB4. As quickly as the law could be enforced, it now couldn鈥檛 again.听
Why We Wrote This
A story focused onThe legal drama unfolding around Texas鈥� new immigration law points to the uncertainty surrounding a state attempt to use authority traditionally reserved for the federal government.
The actual constitutionality of SB4 may not be decided for months. Yet the legal turmoil of the past three days has threatened to upend over a century of U.S. immigration law, while triggering confusion and panic across the Lone Star State.听
There are signs of a ripple effect, too. Iowa lawmakers on Tuesday that also challenges federal immigration authority, creating a state crime for illegal reentry.听
If the Texas law goes into effect, 鈥渢hat is a huge change in the way our legal system works,鈥� says Denise Gilman, co-director of the Immigration Clinic at the University of Texas at Austin School of Law.
鈥淚t just seems that at a minimum what is due is serious consideration on the merits of the legal issues,鈥� she adds.听鈥淚t shouldn鈥檛 be that you don鈥檛 know from one hour to the next if you will be subject to deportation by the state of Texas.鈥�
Expanded immigration authority听
SB4 would give Texas immigration powers that no other state government has had in over a century. Under the law, state law enforcement officers can arrest people they suspect of entering Texas illegally from a foreign nation, and state judges have the authority to听initiate deportations to Mexico.
Courts have previously found that immigration enforcement is a federal, not state, authority. Republican-led Texas over the past three years has stepped up border enforcement, including trespassing arrests of migrants, while arguing the Biden administration has neglected to curb record-high illegal migration. In the past two fiscal years, U.S. Border Patrol encountered migrants between ports of entry along the southern border more than 2 million times听each of those years.听
鈥淜now this: What they have stayed is the Texas enforcement of SB4,鈥� said Gov. Greg Abbott on Tuesday during a previously scheduled speech in Austin.听鈥淲e will continue to use our arrest authority and arrest people coming across the border illegally.鈥�
Court challenges to the new Texas law were inevitable, and to date, three different federal courts have issued rulings on SB4. But no court has yet to rule definitively on the law鈥檚 constitutionality.
Unpacking the legal whiplash听
Instead, a month of legal challenges to the law has revolved around the procedural question of whether SB4 can be enforced while federal courts weigh the law鈥檚 constitutionality.
In February, a district court judge in Austin said SB4 is likely unconstitutional and blocked it from taking effect. Texas immediately appealed the ruling, and a panel of judges on the U.S. Court of Appeals for the Fifth Circuit reversed it.
Days later, Supreme Court Justice Samuel Alito 鈥� who, as the circuit justice for the Fifth Circuit, handles all procedural questions arising from that court 鈥� stayed the appeals court鈥檚 ruling. SB4 was, again, temporarily blocked from taking effect.
But the Fifth Circuit鈥檚 handling of the case has been unusual. In reversing the district court鈥檚 ruling, the panel issued an administrative stay that let Texas enforce SB4. An administrative stay is often limited to a short period of time, usually a few days. But in this case, the stay is likely to be in place until the panel hears听arguments on the merits 鈥� a month later in early April, says Professor Gilman.
The Supreme Court generally defers to lower court decisions in procedural matters like this. Because its ruling was an unsigned order, it鈥檚 unclear what rationale the court used for its ruling Tuesday allowing SB4 to go into effect.
But it came with a jargon-filled but biting concurrence from Justice Amy Coney Barrett. The case reached the high court 鈥渋n an unusual posture,鈥� she wrote. While the justices still chose to defer to the appeals court, she added that 鈥渢he Fifth Circuit should be the first mover.鈥� If the lower court did not act soon to issue a more permanent order, she continued, the Biden administration 鈥渕ay return to this court soon.鈥�
Hours later, a Fifth Circuit panel lifted the administrative stay and scheduled a virtual oral argument for the next morning to consider a more permanent stay. While there was some discussion of SB4鈥檚 legal merits during the one-hour argument, Professor Gilman expects the April 3 hearing on the district court鈥檚 ruling to feature much more.听
鈥淥ne of things you have to analyze [at that point] is if the law is likely to be found unconstitutional,鈥� she says.
A court cannot make that determination without reaching some conclusion, albeit a provisional one, on the legality of the law. But even that hearing next month will be a procedural one, she says.
鈥淭he bottom line question here is, should this law be allowed to go into effect鈥� while courts spend the next several months deciding if SB4 is constitutional or not, she adds. Whether it鈥檚 the Fifth Circuit or the Supreme Court who does it, she continues, the law 鈥渟hould be halted, so as not to change a whole legal regime leading to the deportation and arrest of migrants based on a law that hasn鈥檛 really been examined by the courts.鈥�
Whatever the decision is, it will likely be appealed to the Supreme Court. With a full docket already this term, the justices likely wouldn鈥檛 decide SB4鈥檚 future until the next term, starting in October. And as this uncertainty lingers, the legal landscape continues to shift. Iowa Gov. Kim Reynolds says she plans to sign the law passed Tuesday, which allows state law enforcement to arrest immigrants who were previously deported or denied U.S. entry.
鈥淎 nightmare come true鈥� for one resident听
Caught in the eye of this storm of legal papers and procedures have been those SB4 stands to affect most.
Foremost among them are Texans with mixed-status families. For one medical assistant in Austin, who declined to have her name published for fear of legal consequences, it has been a month of agonizing uncertainty, punctuated by the emotional roller coaster of the past three days.听
She was brought to the United States from Mexico as a baby, but in 2015 gained Deferred Action for Childhood Arrivals status, meaning she would not be subject to SB4. But her parents are unauthorized immigrants, and for the past month, she says, they鈥檝e been afraid that their family could be quickly broken up if SB4 goes into effect.
Even though it only ended up being a few hours, that time with SB4 in effect 鈥渨as a nightmare come true,鈥� she says.
鈥淪o many scenarios went through my head,鈥� she adds. 鈥淭hinking about being separated from my parents, having to explain to [my] young kids what might happen [was] so hard.鈥�
Speaking on Wednesday morning, she says, 鈥淭here鈥檚 happiness, a little bit, because it was [stayed]. But there鈥檚 still uncertainty. ... It鈥檚 just confusing, and it鈥檚 stressful. I just wish they would say if it鈥檚 unconstitutional or it鈥檚 not.鈥澨�
All month, her family has debated leaving Texas, and for a few hours on Tuesday, those thoughts began morphing toward concrete action. They thought about moving to Louisiana, but ultimately decided against it. She and her siblings have jobs, and their children are settled in school. Moving to a new state would just be too much disruption. Instead, she and her siblings are planning to do all the family鈥檚 errands and chores so their parents don鈥檛 have to be outside too often.
鈥淭here鈥檚 really nothing we can do but wait,鈥� she says. 鈥淭he best option right now is for [us] to continue working and helping my parents.鈥�
On-the-ground realities听
Exactly how SB4 would be enforced on the ground is unclear. Notably, Mexico鈥檚 Ministry of Foreign Affairs on Tuesday the country would not accept individuals deported under the law.
Meanwhile, for law enforcement in Texas, the judicial back and forth has been a prelude to, essentially, a return to business as usual. Police departments in major cities like听,听, and听 said Tuesday that they will continue to focus on top public safety priorities, which don鈥檛 include immigration enforcement.
鈥淎lthough we will always follow the law, the primary responsibility for immigration enforcement and border protection should be left to our federal and state partners,鈥� Fort Worth Police Chief Neil Noakes said in a video released in English and Spanish.
The speaker of the Texas House of Representatives pushed back against that approach on X, formerly Twitter: 鈥淎ny local law enforcement agency that refuses to enforce Senate Bill 4 is abandoning their sworn duty to uphold the rule of law.鈥�
There is also an expectation among many in Texas law enforcement that the statute would mostly be enforced in border counties.
鈥淭hose counties are already forward-leaning on border security and crime in general,鈥� says Skylor Hearn, executive director of the Sheriffs鈥� Association of Texas. SB4 is 鈥渞eally not going to fundamentally change how sheriffs do their business.鈥�
鈥淚t鈥檚 as good a [border security] measure as Texas, as a state,听probably can provide. But it doesn鈥檛 secure the border,鈥� he continues.听鈥淲e are still dependent on the federal government to step up and do its job.鈥澨�
The legal uncertainty around SB4 鈥渇eels like a roller coaster,鈥� says Professor Gilman. 鈥淚t is a roller coaster, [and] the stakes are very high.鈥�
