By Danny Kennedy, Staff Writer
Photo Courtesy of Pixabay.com
In 2023, Texas legislators approved Senate Bill 4 (“S.B. 4”), which would allow for Texas law enforcement to arrest any individual illegally crossing the Mexican border.[1] Initially, S.B. 4 was supposed to go into effect on March 5, 2024, but the U.S. Justice Department and other advocacy groups have used litigation to prevent the law from going into effect.[2] S.B. 4 would not only allow Texas law enforcement to arrest individuals who they believe illegally crossed the Mexican border into Texas, but if the individual is convicted, a judge would be required to issue an order directing police to transport them to a port of entry.[3] The judge could drop the charges should the migrant agree to return to Mexico, while Texas authorities have the ability to turn migrant families over to U.S. Border Patrol Agents to avoid separating families.[4]
While litigation regarding S.B. 4 was pending, Senior U.S. District Judge David Ezra of the United States District Court of the Western District of Texas issued an order in late February barring Texas from enforcing S.B. 4 until the courts resolved the litigation.[5] However, shortly after the District Court’s order was issued, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) temporarily placed it on hold.[6] As a result, the U.S. Department of Justice and other government officials petitioned the Supreme Court to keep the law on hold while litigation continues.[7] After considering the arguments, the Supreme Court quickly issued administrative stays, or orders blocking the Fifth Circuit’s ruling, keeping S.B. 4 on hold to allow the Justices more time to consider both Texas’ and the Federal Government’s arguments.[8]
On Tuesday, March 19, in a short and unexplained order, the Supreme Court declined the Federal Government’s request to lift the Fifth Circuit’s stay, allowing S.B. 4 to go into effect.[9] However, hours after the Supreme Court’s decision, the Fifth Circuit convened and issued an order to allow the initial District Court’s injunction preventing the enforcement of S.B. 4 to stand.[10]
The legal back and forth has left many migrants and even some law enforcement confused as to what law is in effect and what is on hold.[11] Top state law enforcement put border-city police agencies on notice of the Supreme Court’s decision, and then subsequently informed them of the Fifth Circuit’s decision later that same night, expressing concern as to the enforcement provisions of S.B. 4.[12] Noncitizens and migrants have expressed concern as to whether S.B. 4 was in effect and its ramifications, confused by the quick judicial ping pong federal courts have been playing with the bill.[13]
Texas’ main argument is that S.B. 4 is constitutional, granted by Article I, Section 10 of the Constitution stating, “No State shall, without the consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”[14] Texas is arguing that the border crisis constitutes an invasion under this Article of the Constitution, allowing its law to supersede that of Federal immigration law.[15] The Federal government has countered this argument by pointing to a long history of courts reserving immigration matters solely for Congress and the Federal government.[16] The government highlights a 2012 Supreme Court case wherein the Justices denied Arizona the ability to impose additional state legal penalties for failure to comply with federal immigration laws.[17]
Immigrants, activists and law enforcement will all have to continue to wait to see how the Fifth Circuit rules on the merits of the State’s appeal regarding S.B. 4; but if the Supreme Court’s recent actions are any indication, they may find S.B. 4 constitutional should the case make its way back to the high court.
[1]Maria Mendez, Texas’ SB 4 Immigration Law: Here’s What to Know About SB 4, The Texas Tribune, https://www.texastribune.org/2024/03/18/texas-sb-4-immigration-arrest-law/ (March 20, 2024).
[2] Id.
[3] Id.
[4] Id.
[5] Amy Howe, Supreme Court Allows Texas to Enforce State Deportation Law, SCOTUSblog, https://www.scotusblog.com/2024/03/supreme-court-allows-texas-to-enforce-state-deportation-law/ (March 19, 2024).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Alejandro Serrano and Uriel Garcia, Texas’ New Immigration Law is Blocked Again, The Texas Tribune, https://www.texastribune.org/2024/03/19/texas-sb-4-illegal-immigration/ (March 19, 2024).
[11] Arelis Hernandez and Patrick Svitek, Texas Immigration Law is on Hold. But the Confusion is Still Mounting, The Washington Post, https://www.washingtonpost.com/nation/2024/03/20/texas-sb4-law-confusion/ (March 20, 2024).
[12] Id.
[13] Id.
[14] U.S. Constitution, Art. I. § 10, Cl. 3.
[15] Howe, supra note 5.
[16] Id.
[17] See Arizona v. U.S., 132 S. Ct. 2492, 2494 (2012).
