The push by Republican-led states to take on a direct role in immigration enforcement — historically a federal matter — is playing out amid a presidential race in which border security has emerged as a vulnerability for President Biden after three years of record illegal crossings.
Wednesday’s hearing followed a day of legal whiplash in federal court for the Texas law, known as S.B. 4. The Supreme Court briefly allowed the law to take effect, but the U.S. Court of Appeals for the 5th Circuit halted the state from enforcing it late Tuesday.
Texas lawyers defended the law, saying that Biden, the FBI director and other officials have acknowledged that there is a crisis at the border. Texas, as a sovereign state, has the right to arrest people for entering it illegally, the lawyers said.
Circuit Chief Judge Priscilla Richman wondered during the hearing how the Texas law would work in practice, listing scenarios that could quickly lead to confusion.
“This is the first time, it seems to me, that a state has claimed that they have the right to remove illegal aliens,” Richman said. “This is not something, a power, that historically has been exercised by states, has it?”
State officials said they would not deport migrants directly but would hand off detainees to federal officials or take them to border crossings with Mexico.
Richman wondered: What if federal officials, as they have said, refused to carry out an order? What if a foreign national entered the United States via Canada and crossed through several states on their way to Texas. Could they be arrested and deported under Texas’s new law?
Aaron Lloyd Nielson, the Texas solicitor general, said he wasn’t sure. In some cases, they might be arrested; in others, they might not. Nielson said the Texas law is “uncharted.”
Nielsen said Texas has the right to arrest people for entering the state illegally.
“Texas has decided that we are at the epicenter of this crisis,” he said. “We are on the front line, and we are going to do something about it.”
The law’s fate is yet another flash point in the nation’s polarized debate over immigration, which Republican candidate and former president Donald Trump has made a central theme of his campaign against Biden. Whatever the 5th Circuit decides, the status of the law is likely to go back before the Supreme Court.
The high court’s order Tuesday afternoon set off a fast-moving round of legal maneuvering in the lower court that has kept the law’s status in limbo.
The Supreme Court urged the 5th Circuit to decide quickly whether the law would remain in effect while litigation continues.
The brief order late Tuesday once again blocking the law did not explain the reasoning of the two judges — Richman, a nominee of George W. Bush, and Irma Carrillo Ramirez, a Biden nominee. The dissenting judge — Andrew Oldham, a Trump nominee — said only that he would have allowed the law to remain in effect before Wednesday’s hearing.
“It’s ping-pong,” Efrén C. Olivares, director of strategic litigation and advocacy at the Southern Poverty Law Center, said in a phone interview, describing the back-and-forth rulings.
Olivares said it is unclear how soon the three-judge panel will rule, since a preliminary injunction from a lower court halting the law remains in place.
The law makes it a state crime for migrants to illegally cross the border and gives Texas officials the ability to carry out their own deportations to Mexico.
How they will do so remains unclear. The Mexican government has said that it would not accept anyone sent back by Texas and condemned the law as “encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”
Mexican President Andrés Manuel López Obrador on Wednesday referred to the Texas law as draconian.
“It disrespects human rights. It’s a completely dehumanizing law. It’s anti-Christian, unjust. It violates precepts and norms of human coexistence,” López Obrador said. “It doesn’t just violate international law but [the teachings of] the Bible. I say this because those who are applying these unjust, inhumane measures go to church. They forget that the Bible talks about treating the foreigner well, and of course, loving your neighbor.”
The Texas law was passed last year as part of Republican Gov. Greg Abbott’s push to expand the state’s role in immigration enforcement — historically the purview of the federal government and its jurisdiction over international borders.
The Supreme Court’s decision drew dissent from the three liberal justices, two of whom said the majority was inviting “further chaos and crisis in immigration enforcement.”
“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” wrote Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson.
The brief, seesaw implementation of the law Tuesday appeared to illustrate the dissenting justices’ concerns about legal chaos. Texas Republicans celebrated the Supreme Court ruling on social media Tuesday and said S.B. 4 was in full effect, only to be stopped again hours later.
The Texas law carries state criminal penalties of up to six months in jail for migrants who illegally enter from Mexico. Those who reenter illegally after a deportation could face felony charges and a 10-to-20-year prison sentence. Texas lawmakers also empowered state judges to order deportations to Mexico and allowed local law enforcement personnel to carry out those orders. Judges may drop state charges if a migrant agrees to return to Mexico voluntarily.
The battle over the Texas law is the latest legal clash between the Biden administration and GOP leaders over the role of states in immigration enforcement, which Republicans have emphasized as a key issue in the 2024 presidential campaign.
The Supreme Court ruled in a split decision in January that the Biden administration could remove razor wire Texas had installed along the Mexico border, until courts determine whether it is legal for the state to install its own barriers.
Luis Miranda, a spokesman for the Department of Homeland Security, said federal immigration agencies do not have the authority to assist Texas with the implementation of the state law. The only deportations that U.S. agents are allowed to conduct must involve federal orders, he said.
“Immigration is within the exclusive purview of the federal government,” Miranda said in a statement.
U.S. District Court judge David A. Ezra temporarily blocked the Texas law last month, saying it was probably unconstitutional and “could open the door to each state passing its own version of immigration laws.” Ezra said the law intruded into federal matters even more than an Arizona immigration law that the Supreme Court partially struck down in 2012.
But the 5th Circuit quickly froze Ezra’s decision without explanation and said the Texas law could be enforced, at least temporarily, unless the Supreme Court weighed in.
The Biden administration, El Paso County and immigrant advocacy groups, all of which had sued to block the law, then asked the Supreme Court to keep it on hold while litigation continues.
Ann E. Marimow contributed to this report. Arelis R. Hernández in El Paso and Mary Beth Sheridan in Mexico City also contributed reporting.
