Appeals court blocks enforcement of Texas migrant law once again

DALLAS - Just hours after the U.S. Supreme Court said Texas can enforce its SB4 border law, the 5th U.S. Circuit Court of Appeals panel hearing arguments on the merits of the law temporarily blocked it again.

Senate Bill 4 is a law that would give Texas law enforcement officers the authority to arrest anyone they suspect of crossing into the United States illegally.

It was passed by Texas lawmakers last year. Law enforcement could then take those suspects to a judge to be deported, but immigration enforcement has long fallen under control of the federal government.

Tuesday afternoon, the U.S. Supreme Court allowed the strict new immigration law to take effect.

The nation’s highest court didn’t address whether the Texas law is constitutional.

The justices then sent the measure back to the appellate court, which issued an order that put a temporary stop to SB4 late Tuesday night.

Much of the legal wrangling so far have focused more on court procedures, but the larger debate on the constitutionality is still playing out.

The Biden administration and immigration rights groups are suing Texas over the law, saying it violates the constitution and will lead to racial profiling.

The head of the National Border Patrol Council said SB4 will make a positive impact by sharply curtailing the number of illegal border crossings.

"People aren't going to want a criminal conviction on their record. Most of the people that are coming here illegally ultimately hope to gain citizenship or at least a legal status. When you have a criminal record, it makes it a whole lot more difficult to do that," said Brandon Judd, the president of the National Border Patrol Council.

"I think once you start parsing out what this law says, you start to see there’s a lot of confusion here," countered Brenda Arroyo, a Dallas immigration attorney.

As an example of the confusion, Arroyo said it’s not clear what police should do with people who have pending applications for asylum, or those who are applying for residency, who are simply waiting for the process to be complete.

Supporters of SB4 said arresting officers need probable cause like witnessing the illegal entry or seeing it on video.

The 5th Circuit Court heard oral arguments Wednesday on whether the Texas law should remain on hold while the legal battle over whether it is constitutional plays out in court.

"It seems to me that Congress has said we want the immigration laws enforced and if the United States isn't going to do it, either because they don't have the resources or they don't have the will, well they've no longer occupied the field. And you know, at that point, I think it would be appropriate under Parker v. Brown for Texas to come in," argued Texas Solicitor General Aaron Nielson. "Texas has a right to defend itself."

Chief Judge Priscilla Richman, Judge Andrew Oldham, and Judge Irma Ramirez made up the three-judge panel.

"This is the first time, it seems to me that, state has claimed that they have the right to remove illegal aliens," Richman said.

Nielson agreed, but said the order to remove under SB4 would not be from the state, but from a judge.

"There's real crisis going on here. Texas has decided that we are at the epicenter of this crisis. We are on the front line, and we are going to do something about it," he said.

"So what if someone enters in, let's say, from Mexico into Arizona, and lives there for five years, then moves to Texas? Are they covered? 

"I don't know the answer," Nielson said.

The chief judge frequently referenced the Arizona Supreme Court case more than a decade ago where the court ruled the federal government, not states, makes immigration law.

Constitutional law attorney David Coale made note of that.

"I think her focus was to be an intermediate court judge and apply what the Supreme Court says, and I’ve read it, and so she was constantly coming back to that, which suggested a good bit of skepticism with Texas’ position," he explained.

"This entire scheme is, you know, exactly what the Supreme Court warned against," DOJ attorney Daniel Tenny said.

For the government, Tenny told the three-judge panel no part of SB4 should be allowed to stand.

"This provision is about criminalizing, under state law, a manner of entry into the United States," Tenny said.

Judge Oldham asked: "Is there anything a state can just do because it thinks it's a good matter for the people of the state of Texas?"

The government lawyer said yes, but not what's in SB4.

Oldham was the Fifth Circuit judge who previously voted to let the Texas law go into effect 

"He was, certainly seems, supportive of Texas' position generally, but then, when he got down into the weeds, I think he was testing the idea of, ‘Okay, well if we do need some kind of stay, what do we really need?’"y

One reason the federal government has argued against the Texas law is the potential impacts on foreign relations.

Mexico's president said his country would not accept deportations carried out from the state law.

Governor Greg Abbott, speaking at the Texas policy summit in Austin, said Texas will continue doing everything it can to protect the sovereignty of Texas and the United States while waiting the Fifth Circuit's opinion as to whether the law, for now, can take effect.

"They have kept the stay in place. But know this, what they have stayed is the Texas enforcement of SB4. But even without SB4, Texas has the legal authority to arrest people coming across the razor wire barriers on our border, and we will continue to use our arrest authority and arrest people coming across the border illegally," Abbott said.

Jacksboro Republican State Representative David Spiller carried the legislation in the House.

"Right now, I feel good about where we are. I understood that there would be challenges. I didn't know exactly what form they would take," Spiller said.

He said the law was crafted to steer clear from the problems that doomed Arizona’s law.

"SB4 is drafted and designed the way it is so that it can withstand constitutional scrutiny. Now, that being said, if the U.S. Supreme Court wants to say we're going to overturn all or part of the Arizona case, that's fine with me," Spiller said.

Abbott also addressed the comparisons drawn to the Arizona case.

"We found ways to try to craft that law to be consistent with the dissent that was wrote in that Arizona case, by the Justice Scalia," he said.

It’s not clear how quickly the next decision on maintaining the temporary stay will come.

It's a safe bet that the larger question on whether SB4 is constitutional will ultimately be decided by the Supreme Court.

[REPORTER: "Do you think there's any way this gets resolved without going to the Supreme Court?"]

"No," Spiller said.