Texas’ Fiercely Contested Immigration Law, Which Could Upend Years of Precedent, Will Be Heard by Appeals Court Today

The legislation, a response to what Governor Abbott calls a migrant ‘invasion’ across the Mexican border, allows Texas police to arrest migrants and state judges to order their deportation.

AP/Eric Gay
President Trump and Governor Abbott on February 29, 2024, at Eagle Pass, Texas. AP/Eric Gay

In what has become a contentious and rapidly-shifting legal dispute, riders of the Fifth United States appeals circuit will hear arguments on Wednesday over the merits of a Texas immigration law — a case that has sparked questions about whether the Supreme Court will ultimately weigh in and reverse long-held precedent. 

The legislation, called Senate Bill 4, aims to allow Texas police to arrest migrants and state judges to order their deportation. It has been challenged by immigrants’ rights groups and the Biden administration, who say the law violates the Constitution’s Supremacy Clause and court precedent that has said entry and removal of noncitizens is the federal government’s purview. Governor Abbott, for his part, maintains the state has a duty to defend itself from a migrant “invasion.” 

In a split decision last week, the appeals court temporarily kept Texas’ Senate Bill the law blocked while it considers the merits of the law. Much of the case so far has centered around a 2012 Supreme Court ruling, Arizona v. United States, which blocked provisions of a state law that the court ruled conflicted with federal immigration enforcement. If it ends up back at the Supreme Court, the justices will have a chance to consider — and potentially reverse — prior rulings that have for years been the law of the land on immigration matters. 

“I wouldn’t put a lot of money on the [Supreme] Court upholding Arizona v. United States, although it could,” a Temple University law professor specializing in immigration and constitutional law, Peter Spiro, tells the Sun. 

One reason the court could uphold the Arizona case is because “it’s not just the 2012 ruling that it would be reversing,” he says. “There’s a long line of precedent, culminating in Arizona v. United States, which the court would be walking back on.”

The balance of the court shifted during the Trump administration, he says, and jurisprudence has become “destabilized in the last couple years” to the point that “nothing is sacred.” 

“If we were asking this question five years ago, it would be ‘this is just political theater on Texas’ part, and there’s no way that this law is going to go into effect,’” Mr. Spiro says. Before the current makeup of the court, he says, he “would have bet a lot of money on the court striking down SB 4.”

Texas’ law challenges 150 years of precedent that blocks states from enforcing immigration law, he adds. While Arizona’s legislation in the past was an attempt to “navigate around those historically established constraints,” the Texas law goes further by “taking the gloves off and saying we’re just going to enforce immigration law on our own.”

Though the justices can be hard to predict, one reason that the Court, “even in its current configuration,” might strike down Texas’ law is because it “goes to the core of historically entrenched” balances of power between states and the federal government, he adds.

“One reason that it might see its way to striking down SB 4 is that other states would follow suit,” Mr. Spiro says. “ Basically, they have a lot of red states with strong restrictionist constituencies who would adopt copycat laws, and then things could get just out of hand in terms of the confusion factor.”

The two rationales in the Arizona decisions were that states shouldn’t constrain federal discretion over immigration enforcement and that immigration matters involve foreign nations. 

“The slippery slope here would point to 50 different immigration regimes, and that does become unmanageable,” Mr. Spiro says. 

One reason for the “fireworks” around the litigation of the case is that “this is a clear challenge to this established constitutional dictum relating to immigration enforcement,” he says.

When it comes to how the appeals court on Wednesday will perceive oral arguments, the order temporarily blocking the legislation last week made it clear that the three judge panel had differing viewpoints. Chief Judge Priscilla Richman, an appointee of President George W. Bush, and Judge Irma Carrillo Ramirez, a President Biden appointee, referenced the Arizona ruling heavily, as the Sun reported

“Texas has failed to persuade us that it is likely to show that the entry, removal, and arrest provisions do not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” the majority noted. 

Yet, a President Trump appointee, Judge Andrew Oldham, wrote a lengthy dissent laying out a case for allowing Texas to give its law a test run. 

Citing the Department of Homeland Security’s releasing of millions of noncitizens into the country, an estimated 1.7 million “gotaways” that evaded border security, and hundreds who are on the terrorist watchlist, Judge Oldham asserts these problems stem, at least partially, from “DHS’s decision not to enforce the immigration laws Congress wrote.”

“The effects of DHS’s non-enforcement fall disproportionately on Texas because that State shares a 1,254-mile border with Mexico,” he writes, noting that Texas retains sovereignty in the federal system. 

The New York Sun

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