Latest on Texas SB 4 law as 5th Circuit hears oral arguments – Washington Examiner

A federal appeals court heard arguments Wednesday over whether to allow Texas to enforce a state law temporarily that permits state law enforcement to arrest and detain people they suspect of illegally entering the country.

The hearing came one day after the Supreme Court effectively allowed the measure to take effect, only for the U.S. Court of Appeals for the 5th Circuit to block the law late Tuesday night, less than 12 hours after the high court’s decision.

A brief overview of the case so far

Senate Bill 4 has been ensnared in a tense battle between Texas and the Biden administration as the state seeks to mitigate the unending flow of migrants over the southern border. Although the Department of Homeland Security is typically responsible for handling undocumented migrants, the law signed by Gov. Greg Abbott (R-TX) in December makes entering the Lone Star State illegally a state crime and allows judges to order deportations in some instances.

The law was initially challenged by the Biden administration and a pair of immigrant advocacy groups along with El Paso County, all of which argue that the Supreme Court’s 2012 precedent in Arizona v. United States clearly states that removal of migrants is the federal government’s prerogative.

Texas Attorney General Ken Paxton has argued that SB 4 complies with federal law and argues “states generally enjoy wide latitude to regulate alien misconduct and prosecute crimes involving illegal entry.” There have so far been no arrests made under SB 4 despite its brief enactment.

Texas faces uphill road to keep SB 4 temporarily enacted

The state’s Solicitor General Aaron Nielson argued during the Wednesday morning hearing that Texas has a “right to defend itself,” pointing to evidence that some cartel members have penetrated the state’s border with Mexico, and said that applications of the state law are therefore permissible.

5th Circuit Chief Judge Priscilla Richman, an appointee of former President George W. Bush, noted that states don’t normally have the police power to remove people from the United States. At times, Nielson struggled to answer certain hypotheticals raised by Richman about the law’s application, such as what happens if an “illegal alien” crosses from Arizona to Texas.

Whether SB 4 can temporarily go into effect will likely be contingent on how Richman votes in the case. Circuit Judge Andrew Oldham, an appointee of former President Donald Trump, has twice voted to uphold Texas’s border policies and dissented from the appeals court’s decision to block SB 4 late Tuesday night.

The final judge on the panel, Irma Carrillo Ramirez, is an appointee of President Joe Biden and also joined Richman Tuesday evening in the 2-1 vote that halted SB 4’s enforcement.

Richman at one point asked an attorney for the Justice Department to address Texas’s argument that the state law should be allowed to go into effect on the notion that the federal government is not doing a sufficient job of carrying out U.S. immigration laws.

Trump appointee searches for narrow exceptions

DOJ lawyer Daniel Tenny said that a major problem with implementing SB 4 is that it would involve the state collaborating with other countries. Tenny also asserted that Texas was factually wrong that the federal government has somehow withdrawn from its obligations to enforce immigration law.

At one point, Oldham pressed Tenny on why Texas’s law, which allows for the arrest of people who cross into the United States in places other than ports of entry in Texas, is exclusively a federal field. Tenny argued that it is the federal government’s job to handle the immigration system at large.

Oldham further asked if there is a “single thing” outside of cooperation with the federal government that a state can do to prevent illegal immigration. Tenny argued states can have “generally applicable state laws.”

“So it’s not really field preemption. Really your argument is conflict preemption,” Oldham said.

“And it really boils down to conflict preemption as to the enforcement priorities of the executive branch, to which I don’t understand what you do with cases like Kansas v. Garcia, post-Arizona, where the Supreme Court has been very clear that you can’t just come in and say, ‘Well, we would treat it differently,’” Oldham added.

What happens next?

The Supreme Court did not explain why it voted to let SB 4 take effect pending further action from the 5th Circuit Tuesday afternoon.

As part of the high court’s 6-3 vote, Justice Amy Coney Barrett wrote a concurrence that was joined by Justice Brett Kavanaugh, adding more context to the majority’s order. Barrett and Kavanaugh contended that the Supreme Court should avoid second-guessing appeals courts when it comes to short-term “administrative” pauses that are generally used to give courts a few additional days to review the briefs, arguing it “puts this case in a very unusual procedural posture.”

The pair of justices warned that a final determination by the appeals court about whether to pause the implementation of the Texas law while the appeals process plays out in lower courts should happen sooner rather than later.

The 5th Circuit scheduled expedited oral arguments about the stay shortly after the high court acted.

Justice Sonia Sotomayor, whose dissent was joined by Justice Ketanji Brown Jackson, said the order “invites further chaos and crisis in immigration enforcement.” The Democratic appointee said that the decision “upends the federal-state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.”

Steve Vladeck, a legal scholar who wrote a lengthy Substack piece explaining the timeline of SB 4’s litigation cycle, said the “bigger question” now is whether the panel moves quickly to formalize its “denial of Texas’s motion for a stay pending appeal” soon after the hourlong oral arguments on Wednesday.

The panel is still prepared to hold a separate April 3 hearing on the merits of the dispute. It’s unclear if the judges will lift or continue Tuesday evening’s pause on SB 4 before that date, or if it will fold its potential denial into a full ruling on Texas’s appeal following the April 3 argument on the merits.


“Let’s assume, for the moment, that the panel acts before April 3 to formally deny Texas’s stay application,” Vladeck wrote.

“The most important point is that such a move would keep SB4 on hold. Texas would then have three choices. (1) It could seek rehearing of that order from the full (“en banc”) Fifth Circuit; (2) it could seek emergency relief from the Supreme Court; or (3) it could sit back and wait for the resolution of its appeal on the merit,” Vladeck added.