The Supreme Court Just Gave Texas a Green Light to Harass Every Latino Person in the State

In the manner of a drunk teenager with a hand on a light switch, the Supreme Court has spent the past few days turning federal immigration law in Texas on and off, on and off, while making mewling noises about whether it was on or off when the party started. In a 6–3 decision along the usual lines on Tuesday afternoon, the Supreme Court allowed S.B. 4—Texas’ stunning usurpation of federal immigration law—to take effect. Through this divided and unreasoned vote, the high court will allow Texas to seize enforcement of immigration powers away from the federal government, a direct violation of a 2012 Supreme Court decision striking down Arizona’s infamous “show me your papers” law. In so doing, the conservative majority has blessed galling chicanery by the Court of Appeals for the 5^th Circuit, which sought to shield Texas’ law from Supreme Court review indefinitely. As two of the dissenters noted, the six justices in the majority have injected “chaos and crisis in immigration enforcement” through oblivious procedural formalism that does not withstand the slightest scrutiny.

As signed into law late last year, S.B. 4 criminalizes unauthorized migration under Texas law, thereby turning unlawful entry and presence in the U.S. into an offense separate and apart from existing federal immigration law. The Texas measure also allows state law enforcement officers to stop and detain anyone they “suspect” of having entered Texas unlawfully, while instructing state courts to disregard any ongoing federal immigration proceedings. It also allows state judges to begin deportation proceedings and permits state magistrate judges to remove migrants back to Mexico as an alternative to continued prosecution. (Those who cannot prove their legal status may be jailed or deported back to Mexico, whether or not they’re Mexican.) This radical revision of immigration law will hinder migrants’ ability to cross safely into the country and seek asylum once here. It will also subject Latinos, including citizens and permanent residents, to heightened suspicion and harassment by law enforcement.

Texas justified S.B. 4 as a necessary exercise of Texas’ constitutional authority to repel an “actual invasion,” an absurd claim with zero basis in law or fact. As Texas Gov. Greg Abbott declared, S.B. 4 embodies Texas’ singular view that its constitutional authority “is the supreme law of the land and supersedes any federal statutes to the contrary.” All of this, as a federal district court in Texas noted last month, amounts to “nullification of federal law and authority—a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.” (Fact check: true.)

And yet, shortly after that district court blocked S.B. 4, the 5^th Circuit—and of course it was the 5^th Circuit—froze its injunction and let Texas enforce the new law from top to bottom. So the Department of Justice, joined by pro-immigration groups, asked SCOTUS for relief. While the full court mulled this request, Justice Samuel Alito kept the law on hold until Tuesday (with a four-minute lapse on Monday afternoon when he let it take effect, apparently by accident, for a short moment). After Tuesday’s order, Texas can begin arresting people suspected of unauthorized presence in the country, interfering with migrants’ ability to seek asylum, and removing residents to Mexico—a sovereign foreign nation that has not actually agreed to take back individuals deemed deportable by Texas.

We don’t know why Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito voted to let S.B. 4 spring into action. But Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, proffered a weak excuse for the capitulation. The 5^th Circuit, she noted, did not issue a traditional stay of the district court’s injunction (called a “stay pending appeal”), which the justices could review. Instead, the 5^th Circuit styled its order as an “administrative stay.” These stays are meant to briefly preserve the status quo while a court considers whether to issue more formal, lasting relief. SCOTUS does not typically look at mere administrative stays due to their fleeting and informal nature; it prefers to wait for a formal stay before jumping in. So the 5^th Circuit has begun to call its most controversial stays “administrative,” in a brazen bid to insulate them from probing Supreme Court review.

On Tuesday, it worked. Barrett called the 5^th Circuit’s administrative stay “an exercise of its docket-management authority,” declaring that SCOTUS should not “get into the business” of reviewing “a short-lived prelude to the main event.” In other words, because the 5^th Circuit used the magic word administrative to describe its (indefinite) stay, Barrett refused to consider whether S.B. 4 should be kept on ice while the merits are reviewed. She simply rubber-stamped the 5^th Circuit’s stay, rewarding its shameless gamesmanship. The only silver lining to this is that Barrett appears to recognize the broader pattern “lurking” here: defiant lower courts recasting stays as “administrative” to thwart Supreme Court review for months, with no endpoint in sight. “The time may come, in this case or another, when this court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly,” she tsked, sending a warning signal to the 5^th Circuit. “But at this juncture in this case, that conclusion would be premature.” (Barrett did not explain why SCOTUS did not just issue its own injunction against S.B. 4, as it undoubtedly could have.)

Justice Sonia Sotomayor’s sharp dissent, joined by Justice Ketanji Brown Jackson, was far less tolerant of the 5^th Circuit’s duplicity. (Justice Elena Kagan also dissented, in a brief separate opinion, urging that an administrative stay not be used to “spell the difference between respecting and revoking long-settled immigration law.”) Sotomayor noted that the 5^th Circuit “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months,” citing stays that dragged on for as long as 85 days. In reality, she explained, this benign-sounding tool has developed into an act of extreme judicial gaslighting. The administrative stay here, she wrote, “not only upends the status quo but also extends that disruption indefinitely.” In the process, it “defeats the purpose of this court’s stay analysis and threatens to evade effective review of this unprecedented law.” This play is largely a repeat of S.B. 8, Texas’ 2021 vigilante abortion ban, which SCOTUS allowed to take effect in the dark of night, without any reasoned analysis—after the 5^th Circuit froze a district court’s injunction with (you guessed it) an administrative stay. (In her opinion on Tuesday, Barrett wrongly claimed that the Supreme Court has never reviewed an administrative stay, evidently forgetting the S.B. 8 fiasco.)

Had the court called BS on the 5^th Circuit and applied its usual standards to the stay, Sotomayor correctly noted, it would have no choice but to halt S.B. 4. When you tot up the balance of alleged irreparable harms here, it isn’t even a close call. On the one side of the ledger, Texas claims to suffer a temporary inability to repel an immigration “invasion.” On the other side, the federal government stands to suffer irreparable harm to its foreign relations, its international obligations to protect individuals fleeing from persecution or torture, and its ability to carry out legitimate immigration enforcement. Meanwhile, noncitizens face unimaginable harm now that Texas can arrest and deport them with zero regard for their rights under federal law. None of these evils can be readily unwound, and the Supreme Court had previously held unequivocally that states cannot arrogate the federal government’s power over immigration policy and enforcement. These facts should have been reason enough for SCOTUS to block S.B. 4 immediately.

Reading the Barrett and Sotomayor opinions side by side, there is a bit less of a delta than you might assume. What’s strange about Barrett’s opinion is that she clearly recognizes the 5^th Circuit’s bad behavior, yet suspends any appropriate response for the time being. A cynic might think Barrett knows that S.B. 4 is obviously unconstitutional but wants to punish the Biden administration for its allegedly lax border enforcement by letting the law kick in for a few weeks. Her opinion implicitly faults both parties, Texas and the federal government, and gives Texas a reprieve this time—to the detriment of immigrants, Latinos, and the basic principle of federal supremacy. “If a decision does not issue soon, the applicants may return to this court,” she cautioned the 5^th Circuit. In the meantime, cruelty and nullification will reign in Texas, but just for an indefinite while.

A few short weeks ago, the high court announced that Colorado could not enforce Section 3 of the 14^th Amendment to keep an insurrectionist off the ballot because the result would be a “patchwork” of state laws and “nothing in the Constitution requires that we endure such chaos.” It now seems, though, that states eager to usurp federal prerogatives and foment chaos can just hang around the 5^th Circuit and seek extreme forms of relief in the wink-wink disguise of an “administrative stay.” Beware a high court that shows up telling you it’s doing nothing, or empowering an appeals court to do nothing, as it fundamentally upends the balance of powers between state and federal authorities. These procedural manipulations have real-world consequences—namely, open season on people in Texas whom authorities deem to not “look American.” That heinous approach to immigration policy has only ever been the law in this country during America’s most shameful eras. Now, thanks to the Supreme Court’s obtuse inaction, it is again.