Border Crisis

SCOTUS Clears Historic Texas Immigration Law for Enforcement

The U.S. Supreme Court issued a ruling on Tuesday allowing the Texas SB4 Immigration Law to go into effect, at least for now. The action by the court will leave in place an appeals court administrative stay on an earlier federal judge’s preliminary injunction blocking the law from taking effect as scheduled. The latest ruling will see the matter sent back to United States Fifth Circuit Court of Appeals who will hear the case on appeal.

In the ruling, Justices Barrett and Kavanaugh indicated they are not addressing the merits of the case but found the Supreme Court’s action to intervene at this point premature. The ruling now allows the law to go into effect immediately, provided the lower appeals court does not act. The Fifth Circuit has stated that it will expedite consideration of the appeal and oral arguments have been set for April 3 in New Orleans.

In a dissenting opinion, Justice Sotomayor, joined by Justice Jackson, opined that the Supreme Court’s ruling would invite further chaos and crisis in immigration enforcement. Sotomayor wrote, “Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law 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.”

Under Texas SB4, local and state law enforcement will be allowed to arrest, detain, and prosecute migrants suspected of illegally entering the state from Mexico. The law also provides for the removal of a migrant convicted of the offense as part of a sentencing agreement. Migrants convicted of a second offense of illegally entering the state face felony charges in addition to removal.

The American Civil Liberties Union (ACLU), ACLU of Texas, and the Texas Civil Rights Project filed the current litigation against the Texas law on behalf of Las Americas Immigrant Advocacy Center, American Gateways, and the County of El Paso. The lawsuit argues SB4 violates the supremacy clause of the U.S. Constitution in that the enforcement of immigration law is exclusively a federal matter.

The federal court wrangling on the constitutionality of Texas’ new immigration law has seen the law blocked, reinstated, and paused by the Supreme Court on three occasions. Tuesday’s ruling now moves the matter back to the lower appeals court.

In late February, Austin’s Senior U.S. District Judge David Ezra halted the implementation of Senate Bill 4, which was to take effect on March 5, citing the federal government’s supremacy over the enforcement of immigration laws.

In his decision, Ezra stated, “For the past century, Texas has relied on its expansive police powers afforded to it under the Constitution to regulate crime within its borders. Texas may continue to do so, but it cannot regulate the federal field of unlawful entry and removal.”

The law will likely return to the country’s highest court. Any decision by the Fifth Circuit will surely prompt a quick appeal, sending the ACLU challenge back to the Supreme Court.  The battle may be an uphill one for the law. In 2010 a similar immigration law signed by then Arizona Governor Jan Brewer, would have made illegal presence by a migrant and unlawful employment by a migrant in the state a misdemeanor crime. Ultimately, the Supreme Court ruled Arizona’s SB 1070 infringed upon the federal government’s supremacy to regulate and enforce immigration laws.

Randy Clark is a 32-year veteran of the United States Border Patrol.  Prior to his retirement, he served as the Division Chief for Law Enforcement Operations, directing operations for nine Border Patrol Stations within the Del Rio, Texas, Sector. Follow him on Twitter @RandyClarkBBTX.



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