5th Circuit rejects Texas’s attempt to enforce state immigration law

In a late-night ruling on Tuesday, the New Orleans-based Fifth
Circuit Court of Appeals kept a lower court’s injunction against a
controversial Texas immigration law in place while litigation over it
proceeds. 

The three-judge panel ruled 2-1 against the state just a week after hearing arguments on Texas’s motion to stay on the a federal judge’s injunction of Senate Bill 4,
a state law signed this year by Governor Greg Abbott making it a state
crime to enter the state outside of a legal port of entry. The law would
give state and local law enforcement the power to arrest anyone they
suspect of being in the U.S. illegally and judges the authority to order
their removal. Any individual subject to a removal order that does not
comply faces up to 20 years imprisonment in state prison. 

The
consolidated case before the appeals court was filed by the United
States Department of Justice, El Paso County and organizations that
provide services and aid to people in the U.S. illegally. Defendants
include the state of Texas and officials responsible for enforcing SB
4. 

Together, the plaintiffs have argued that immigration
enforcement is solely under the federal government under the U.S.
Constitution’s supremacy clause. Furthermore, SB 4 would significantly
hamper the county and organizations’ ability to provide resources while
the Justice Department says the law will undermine diplomatic efforts
with Mexico. 

Chief U.S. Circuit Judge Priscilla Richman delivered the court’s majority opinion and was joined by U.S. Circuit Judge Irma Carillo Ramirez, a Joe Biden appointee.

Richman
wrote that the state failed to show that SB 4 did not encroach into
legal territory exclusively for the federal government. The George W.
Bush appointee cited the United States Supreme Court’s ruling in Arizona v. United States, in which a law similar to SB 4 was invalidated.

“Texas
has not demonstrated why the same logic does not apply to SB 4’s entry
provisions,“ the George W. Bush appointee wrote. “Allowing Texas to
detain noncitizens ‘without any input from the federal government about
whether an arrest is warranted in a particular case . . . would allow
the state to achieve its own immigration policy.’”

Richman also
found enforcing SB 4 would carry “a high risk…[of] international
friction” that further justifies keeping the injunction in place. 

An amicus brief submitted
by the Mexican government urged the court to rule against the state,
citing concern that SB 4 would lead to the discrimination of Mexican
nationals and strain the United States’ ability to speak on matters of
immigration in “one uniform voice.” 

Richman agreed with the
plaintiffs and the Mexican government that the harm to foreign relations
significantly outweighs any perceived harm to Texas. 

U.S.
Circuit Judge Andrew Oldham, a Donald Trump appointee, said in a dissent
that he would have granted the stay and allowed the state to begin
enforcing its law. He wrote that the plaintiffs in the case were
unlikely to show that SB 4 was entirely unconstitutional, starting with
the issue of preemption. 

Oldham wrote the only area in which the
Supreme Court has found that states are preempted regarding immigration
is with the registration of undocumented citizens. 

“[It] is hard
to see how every application of every provision of SB 4 interferes with
some other purportedly ‘exclusive’ aspect of the federal government’s
power over immigration,” wrote Oldham. “

During last week’s
hearing on the state’s motion to stay the injunction, Oldham was quick
to point out that SB 4 has not been allowed to take effect and any
injuries cited by the plaintiffs’ was merely a “predictive judgment.” He
offered the same criticism in his dissent but redirected it toward his
fellow judges, warning them of the harms of continuing to block state
legislation before it has a chance to be implemented. 

“If SB 4
had been allowed to go into effect, there are at least some applications
of it that would have comported with the Constitution’s supremacy
clause,” Oldham wrote. “And even if a particular application of SB 4
raised particular preemption problems, they could be solved with the
scalpel of as applied relief in a future case as opposed to the machete
of global invalidation in this one.”

Senate Bill 4 was initially blocked by a federal judge in Austin last month, days before it was set to take effect. On appeal, the Fifth Circuit granted a stay, leading to the law being blocked again by the U.S. Supreme Court. Last week, the high court allowed SB 4 to go into effect during a brief window of time before the appeals court again put it on ice. 

For the foreseeable future, SB 4 will remain on hold pending any action from the Supreme Court.