On Monday, the Supreme Court permitted Texas to implement a controversial law empowering state law enforcement officials to arrest individuals suspected of illegal entry into the United States. The court did not offer an explanation for its ruling. However, in a contributing verdict, Justice Amy Coney Barrett, supported by Justice Brett Kavanaugh, suggested that the Supreme Court should abstain from intervening at this point due to the temporality of the injunction the Biden administration had moved to overturn, issued within the appellate court’s power to manage its docket. The concurring opinion can be found here.
This order is the most recent development in a legal conflict sparked earlier this year by the Biden administration in an attempt to prevent enforcement of a Texas law known as S.B. 4. Scheduled to go into effect on March 5, S.B. 4 would criminalize noncitizens unlawfully entering Texas, and permit state court judges to order noncitizens who entered the country unlawfully to return to Mexico. A similar lawsuit filed by El Paso County and two immigrants’ rights groups was consolidated with the government’s case.
In February, Senior U.S. District Judge David Ezra issued an order, backed by a 114-page decision, prohibiting Texas from executing the law whilst litigation continued. However, the U.S. Court of Appeals for the 5th Circuit temporarily suspended Judge Ezra’s order.
This triggered the Biden administration and fellow challengers to approach the Supreme Court, asking the justices to rescind the stay issued by the 5th Circuit, and maintain the status quo while litigation persists.
In response, the Supreme Court unanimously issued multiple “administrative stays”, suspending the 5th Circuit’s ruling and thereby keeping the law at bay to provide the justices time to consider the Biden administration’s solicitation.
Claiming the law would “cause mayhem in the United States’ efforts to manage federal immigration laws in Texas”, the Biden administration urged the court to step in. They argued S.B 4 to be “patently contradictory” to Supreme Court rulings over the last century, making it clear that the authority to admit or deport noncitizens is a fundamental responsibility of the federal government. They suggested that whenever Congress has passed a law concerning these issues, it authenticated state laws, such as Texas’s.
The administration specifically pointed to the Supreme Court’s 2012 ruling which established that Arizona can not levy additional punishment for non-compliance with federal immigration registration rules. Texas cannot enforce criminal penalties or removal requirements, argued U.S. Solicitor General Elizabeth Prelogar, similar to Arizona.
Texas made further arguments in favor of implementing S.B. 4 as a response to an increase in the number of illegal border crossings, specifically considering the extensive influence of Mexican drug cartels and human trafficking of unaccompanied minors. Since the 5th Circuit has expeditiously moved forward with the Biden administration’s appeal and scheduled oral arguments for April 3, the justices ought to wait for the appellate court’s decision instead of intervening sooner, Texas urged.
The state went on to state that national laws are primarily overpowered when Congress has clearly intended to do so. However, neither federal law nor Supreme Court rulings imply that the enforcement of federal immigration law applies solely to the federal government, according to Texas. The state continued to insist that there was no conflict between S.B. 4 and federal immigration law: S.B. 4 “reflects rather than collides with federal law” and allows Texas to uphold federal immigration law, they argued.
The state contended that S.B. 4 is in line with the Constitution, as it provides Texas with the power to defend itself from an “actual invasion.” The state war clause of the Constitution notes that no state may go to war without Congress’s consent unless an actual or imminent danger cannot be delayed.
The term “invaded” as used in the state war clause “has never required an attack by a foreign state or a danger of conquest,” Texas claimed. They insisted that it was intended to have broader application, such as incidents where Texas has used military force to counter “marauders” entering the state from Mexico before it was officially recognized as a state and afterward. Texas argued that it was acting similarly here by “fighting back against cartels that ‘have increasingly acquired a transnational dimension’ and operate as a ‘potent paramilitary force.’”
More on the decision and its implications can be read on SCOTUSblog, where this news was first reported.