Appeals Court Seems Divided on Halting Texas Immigration Law

Illegal immigrants pass through coils of razor wire while crossing the U.S.–Mexico border in El Paso, Texas, on March 13, 2024. John Moore/Getty Images

The U.S. Court of Appeals for the Fifth Circuit heard arguments on March 20 over whether to temporarily halt Texas’s controversial immigration enforcement law before the circuit tackles it more substantively at a later date.

The three-judge panel appeared somewhat divided during arguments from Texas Solicitor General Aaron Nielson, the Justice Department (DOJ), and the American Civil Liberties Union.

Judge Irma Carillo Ramirez, an appointee of President Joe Biden, didn’t speak, but Chief Judge Priscilla Richman seemed more skeptical of the Texas law than Judge Andrew Oldham. Judge Oldham, an appointee of former President Donald Trump, dissented from a March 19 decision by Judges Richman and Ramirez to effectively block the law.

The hearing came one day after the Supreme Court denied an emergency application by the Biden administration to block the law. Hours later, the appellate court reinstated the hold on Texas’s law.

Federal vs. State Authority

Judges Richman and Oldham asked questions about how much power states had over immigration enforcement.

“This is the first time, it seems to me, that a state has claimed that they have the right to remove illegal aliens,” Chief Judge Richman, an appointee of former President George W. Bush, told Mr. Nielson, according to CNN. “I mean, this is not a power that historically has been exercised by states, has it?”

Immigration enforcement is typically thought of as an area of federal law enforcement, but Texas, at the height of the border crisis in December 2023, signed into law Senate Bill 4, which made it a state crime to illegally cross the border.

The Supreme Court notably blocked part of Arizona’s immigration law in 2012, noting that provisions interfered with federal authority. That decision was cited by the Justice Department during oral arguments on March 20.

“This entire scheme is exactly what the Supreme Court warned against,” a DOJ lawyer said, according to The New York Times.

Judge Oldham, at one point, asked the DOJ about the extent to which states could act on immigration enforcement.

“Is there anything a state can just do because it thinks it’s a good matter for the people of the state of Texas, outside of what Congress has allowed them to do explicitly in those two statutes you referenced?” he asked.

The DOJ had cited two provisions of federal law—8 U.S. Code Sections 1252c and 1357—identifying areas of state action in immigration enforcement.

Chief Judge Richman indicated that Texas could achieve similar ends without SB4.

“You’ve got trespass laws,” she said after Mr. Nielson noted that Texas did arrest people who came across the border and trespassed on state property.

He noted that if the trespassing prohibition were lawful, then it wasn’t clear why this extra provision would be unlawful.

Chief Judge Richman also questioned the law’s implementation.

“I was just trying to envision how this would all play out,“ she said. ”I’m not sure I understand the law totally.”

Complicated Timeline

The hearing followed weeks of back-and-forth between the U.S. Supreme Court and the lower courts. A district judge had granted an injunction against Texas’s law, but that injunction was later halted by appellate judges in the Fifth Circuit.

Those judges issued an administrative stay on the injunction but also put that stay on hold so that the federal government could ask the U.S. Supreme Court for intervention. Justice Samuel Alito, the justice hearing requests from the Fifth Circuit, received emergency applications regarding the administrative stay on the injunction and issued multiple orders, including his own administrative stays that were ultimately extended until the rest of the Supreme Court voted.

On March 19, a majority of the justices refused to grant the emergency applications, but a concurrence from Justice Amy Coney Barrett appeared to urge the Fifth Circuit to act quickly. Afterward, the panel of Judges Richman, Oldham, and Ramirez issued an order setting oral argument for March 20. Later that night, it issued another order lifting the administrative stay on the district court’s injunction, once again halting Texas’s law.

The hearing on March 20 came in relation to the judges’ decision on whether to keep the law on hold before it addressed the substance of Texas’s appeal of the lower court injunction, which is preliminary. That appeal is set for oral argument on April 3. It seems likely that the case will ultimately be decided by the Supreme Court, but there could be an en banc hearing within the circuit before it reaches the nation’s highest court.

During the March 20 hearing, the DOJ asked that the appeals court deny Texas’s request for a stay of the injunction pending appeal. If the court were to issue a stay, the DOJ suggested that it delay the effectiveness of that stay for potentially additional Supreme Court proceedings.

“In particular, we would suggest that the court could give the solicitor general three business days to determine whether to go to the Supreme Court, and then if the solicitor general elects to do so, to hold off on the effectiveness of its stay until the Supreme Court rules on that application,” a DOJ attorney said.

This is a developing story and will be updated.