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After a whirlwind of legal judgments over the previous 48 hours, judges for the 5th U.S. Circuit Court of Appeals heard oral arguments Wednesday to determine whether Texas can temporarily implement a law that makes it a state crime to enter Texas illegally.
The legal challenge to SB 4, as the law is known, has ricocheted between a federal appeals court and the Supreme Court since a temporary injunction was issued on Feb. 29. On Wednesday, it ended up in the hands of the appellate court once again with the injunction reinstated.
The back and forth has meant that immigrant communities remain on edge as they closely watch every legal development.
Adriana, a 53-year-old Mexican immigrant who asked to be identified by only first name because of her immigration status, said she hasn’t been sleeping well.
“I’m worried thinking about my kids going out and then telling me that immigration has them. It weighs down on me,” she said.
Houston-based immigration lawyer Ruby Powers said some of her clients have told her they are thinking of leaving Texas.
“As an immigration attorney, it’s very frustrating that we’re playing yo-yo with our communities’ emotions and fear,” said Powers. “People are afraid about whether or not it’s safe to go out.”
SB 4 makes entering Texas illegally a Class B misdemeanor, which can be punished with up to 180 days in county jail and/or a fine up to $2,000. A repeated offense is elevated to a state jail felony. The law also gives a judge or county magistrate the ability to order a person to return to Mexico.
The lawsuit against SB 4, filed by the American Civil Liberties Union of Texas and the U.S. Department of Justice, alleges that the law is unconstitutional because the Supreme Court has previously determined that immigration enforcement falls to the federal government. Texas has argued that the Biden administration has neglected its federal immigration enforcement duties and that the state constitution enshrines its right to fend off an invasion from a foreign enemy.
In oral arguments Wednesday to decide whether a new stay should be granted, Texas argued that SB 4 is not preempted by federal law, and its language varies from a similar law in Arizona that was struck down by the Supreme Court. Lawyers for opposing counsel argued that the precedent set by a 2012 ruling on the Arizona law means that SB 4 is unconstitutional. When asked for specifics of how the law would be implemented, Texas solicitor general Aaron Nielsen was unable to explain how it would work in practice.
Legal whiplash
Wednesday’s hearing is the latest in a legal saga that began once Gov. Greg Abbott signed SB 4 in December.
On Feb. 29, U.S. District Judge David Ezra, a former President Ronald Reagan appointee, issued an injunction blocking the law, stating that it “threatens the fundamental notion that the United States must regulate immigration with one voice.”
The Texas attorney general immediately appealed, and the federal appellate court issued a stay on the injunction, paving the way for the law to go into effect. The Biden administration then turned to the Supreme Court to reverse the decision, starting a round of legal pingpong between the two courts.
Justice Samuel Alito then issued an administrative stay preventing the law from going into effect until March 13 while the court further deliberated. He then extended the stay again on March 18.
On March 19, the Supreme Court denied the emergency application to vacate the stays, allowing SB 4 to go into effect in Texas. The decision was based on procedural grounds, rather than the merits of the case.
In an explanation of the decision, Justice Amy Coney Barrett said that the 5th U.S. Circuit Court of Appeals must make a decision first, urging the lower court to act swiftly. Texas Attorney General Ken Paxton issued a statement on Tuesday calling the Supreme Court’s decision a victory. Abbott called the decision “a positive development.”
Within hours, the federal appellate court dismissed a previous stay blocking a Feb. 29 preliminary injunction, meaning the law was halted again just hours after it went into effect. The court then scheduled oral arguments for 10 a.m. Wednesday.
Abbott did not directly comment on the case Wednesday, but tweeted statistics on arrests for criminal trespassing in Texas.
“While the fight continues in court to uphold SB4, Texas continues to arrest illegal immigrants for criminal trespass,” he said.
It’s unclear when the appellate court will issue a decision on whether to grant another stay, but it faces more pressure to act quickly after the Supreme Court decision. On April 3, the 5th U.S. Circuit Court of Appeals will hear Texas’s full appeal of the preliminary injunction.
The case is expected to make its way back to the Supreme Court, which has not yet ruled on the merits of the case.
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