A U.S. appeals court on March 1 paused a lower court ruling that had placed a temporary hold on a Texas law set to go into effect that would grant powers to prosecute and arrest illegal immigrants who had recently crossed the border.
The Texas law would make it a state crime to illegally enter or reenter Texas from a foreign country and would give state and local law enforcement the power to arrest and prosecute violators. It would also allow state judges to order people to leave the country and impose prison sentences of up to 20 years on those who refuse to comply.
The order from the New Orleans-based Fifth U.S. Circuit Court of Appeals means that the legislature-passed law known as SB4 may go into effect soon. It overturned the lower court’s ruling on March 1, one day after it was blocked.
Oral arguments in the case are slated for its next available date, according to the court, although it’s not clear whether arguments were held on March 4.
But the Fifth Circuit stated that it would stay its decision for seven days to give the federal government a chance to appeal to the U.S. Supreme Court. If the Supreme Court does not reverse the Fifth Circuit’s decision, SB4 will take effect pending Texas’s appeal of last week’s decision by U.S. District Judge David Ezra in Austin, Texas.
Texas’s law would run afoul of federal immigration laws, and Texas would then be able to “permanently supersede federal directives,” which would “amount to nullification of federal law and authority,” he wrote. The Reagan-appointed judge noted that this is a “notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.”
As a result, the judge argued, the federal government would “suffer grave irreparable harm” because other states would be inspired to pass similar measures.
“SB4 threatens the fundamental notion that the United States must regulate immigration with one voice,” he wrote.
“I haven’t seen, and the state of Texas can’t point me, to any type of military invasion in Texas. I don’t see evidence that Texas is at war.”
Judge Ezra was referencing arguments that Texas lawyers made in court.
SB4 is part of a larger effort by the Republican-led state to target illegal immigrants who come across the border. They have argued that such measures are needed because of the record-high numbers of illegal crossings in recent months and years.
Texas Gov. Greg Abbott, Texas Attorney General Ken Paxton, and others have said that they are forced to act on the border and accused the Biden administration of being derelict in its duties to enforce immigration law. Other measures they have pursued include installing razor wire along the border and setting up a floating buoy barrier in the Rio Grande.
An appeals court blocked the use of the floating river barrier, and the Supreme Court ruled against the Texas governor on the razor wire barrier, saying he must allow federal agents to cut the wire.
Mr. Abbott, a Republican, has backed the SB4 law, saying it would complement his efforts to provide better border security.
“Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border,” he wrote in a statement after Judge Ezra’s order. “Even from the bench, this District Judge acknowledged that this case will ultimately be decided by the U.S. Supreme Court.”
Civil rights groups, including the American Civil Liberties Union and groups in favor of illegal immigration, have opposed the law.
“No state has the right to unilaterally decide who gets to be American,” David Donatti, a senior staff attorney with the ACLU of Texas, told the Texas Tribune last week. “Doing so violates the Constitution, undermines human rights, and damages international relations.”
