Supreme Court permits Texas police to arrest people who illegally cross the border as the SB 4 legal clash continues

The U.S. Supreme Court building in Washington, D.C., on Nov. 4, 2022.
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Editor’s note: Late Tuesday night, a federal appeals court let an earlier injunction stand, meaning that SB 4 is blocked again. Read the latest here.

A new Texas law allowing police to arrest people suspected of illegally crossing the southern border with Mexico was stopped from going into effect Tuesday night when an appellate court issued a late procedural order hours after the U.S. Supreme Court ruled that the law could take effect while a legal battle played out.

On the night before hearing oral arguments related to a case challenging the new law, an order from the U.S. 5th Circuit Court of Appeals dissolved an administrative stay, letting a lower court's earlier injunction stopping Senate Bill 4 stand, according to the filing. The appellate court in New Orleans is scheduled to hear oral arguments in the case Wednesday morning.

The nation's high court earlier Tuesday let SB 4, which seeks to make illegally crossing the border a Class B misdemeanor, go into effect but stopped short of ruling on the law's constitutionality. The Supreme Court's move drew a swift denouncement from some Mexican officials and praise from Texas Republicans who counted it as a victory, albeit temporary. The reactions were dated by after 10 p.m. Tuesday when the appellate court issued its order, marking the latest development in whirlwind 24 hours since the Supreme Court had extended a temporary block of SB 4 only to reverse course Tuesday.

The Biden administration challenged SB 4 on the grounds it is unconstitutional because it interferes with federal immigration laws by granting Texas police the authority to enforce immigration law.

The legal case is far from over. It is not clear when the Fifth Circuit will issue a ruling after Wednesday's scheduled arguments. Eventually the case has to be resolved in a federal court in Austin, where the lawsuits were originally filed.

While the Supreme Court didn't rule whether the law is constitutional, justices said that the appeals court didn't follow the right steps when it reversed a federal judge's order blocking SB 4 from going into effect.

"That puts this case in a very unusual procedure posture," Justice Amy Coney Barrett wrote in her opinion, which was joined by Justice Brett Kavanaugh.

"I think it unwise to invite emergency litigation in this court about whether a court of appeals abused its discretion at this preliminary step," Barrett wrote in her opinion.

Barrett also said that if the 5th Circuit doesn't issue its own order soon on whether the law can take effect while the appeals court weighs SB 4's constitutionality, the case can go back to the Supreme Court, which could decide whether the law is constitutional.

Meanwhile, Justice Sonia Sotomayor, one of the three liberal justices who voted no Tuesday, said her colleagues are wrong for not continuing to block the law, writing in her dissent that the Supreme Court "invites further chaos and crisis in immigration enforcement.

"Although the Court today expresses no view on whether Texas’s law is constitutional, and instead defers to a lower court’s management of its docket, the Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo," she added.

Gov. Greg Abbott celebrated the ruling on social media.

Abbott said in a post that this "is clearly a positive development."

Immigrant rights advocacy groups were angered by the high court's opinion.

“While we are outraged over this decision, we will continue to work with our partners to have SB 4 struck down,” said Jennefer Canales-Pelaez, policy attorney and strategist at Immigrant Legal Resource Center, a national nonprofit. “The horrific and clearly unconstitutional impacts of this law on communities in Texas is terrifying.”

In February, U.S. District Judge David Ezra in Austin blocked SB 4, saying the law “threatens the fundamental notion that the United States must regulate immigration with one voice.” Attorney General Ken Paxton’s office immediately appealed the ruling to the U.S. 5th Circuit Court of Appeals, which reversed Ezra’s ruling.

The Biden administration then appealed to the Supreme Court, which temporarily blocked the law until March 18 as it considered the federal government’s request to stop the law from going into effect.

SB 4 seeks to make illegally crossing the border a Class B misdemeanor, carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law also requires state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

Mexico denounced the Supreme Court's ruling, said Roberto Velasco Álvarez, director of North American affairs with Mexico’s Ministry of Foreign Affairs.

"Our country will not accept repatriations from the state of Texas," Álvarez wrote on social media. "The dialogue on immigration matters will continue between federal governments."

The high court’s move comes during a presidential election year in which immigration has become a key issue for voters who in November will decide a rematch of the 2020 election between President Joe Biden and former President Donald Trump. As the court battles play out, historically high numbers of people are arriving at the U.S.-Mexico border this year, many of them seeking asylum.

Earlier this year, a bipartisan immigration bill failed in the U.S. Senate after Trump told Republicans not to vote for it, in part so that he could campaign on the issue. The bill proposed overhauling the nation's asylum system to provide quicker decisions on asylum requests and allow presidents to order immediate deportation of migrants at the border when immigration agents get overwhelmed.

Biden has created some narrow paths for migrants to enter the U.S. legally with policies that seek to deter migrants from entering the country illegally. He also supported the bipartisan legislation that unraveled this year. Republicans have accused him of incentivizing illegal immigration by not taking harder stances on border security.

Trump has said that immigration enforcement will be among his priorities if he wins back the presidency in November. During his presidency, his administration rolled out a series of policies aimed to prevent people from seeking asylum at the U.S.-Mexico border and deter migrants from crossing the border illegally. He was heavily criticized for a “zero tolerance” policy that required Border Patrol agents to separate children from their parents and using racist language to describe migrants.

Gov. Greg Abbott and other Texas Republicans also have made border security and immigration a priority in recent years. Abbott signed SB 4 in December, marking Texas’ latest attempt to try to deter people from crossing the Rio Grande.

In December, ​​the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of El Paso County and two immigrant rights organizations — El Paso-based Las Americas Immigrant Advocacy Center and Austin-based American Gateways — over the new state law.

The following month, the U.S. Department of Justice filed its lawsuit against Texas. The lawsuits have since been combined. Last week, Mexican American Legal Defense and Educational Fund and the National Immigration Law Center also filed a lawsuit on behalf of La Union del Pueblo Entero, an advocacy group in the Rio Grande Valley founded by farmer rights activists César Chávez and Dolores Huerta.

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Correction, March 19, 2024 at 3:19 p.m. : A previous version of this story incorrectly stated the year that Donald Trump and Joe Biden faced each other in the presidential election. The election was in 2020.