The lead attorney for the state of Texas told a federal appeals court on Wednesday that the state may have gone “too far” when it crafted SB 4, Texas’ hotly debated immigration-enforcement law.
The Wednesday morning hearing before the Fifth Circuit Court of Appeals was the latest face off in the ongoing back and forth between the state of Texas and the Biden administration over the measure.
Despite that concession, Texas Solicitor General Aaron Nielsen said the state is still within its right to enact the law to secure the border and the rest of the state.
“What Texas has done here, is they have looked at the Supreme Court's precedent, and they have tried to develop a statute that goes up to the line of Supreme Court precedent, but allows Texas to protect the border,” he said during oral arguments Wednesday. “Now, to be fair, maybe Texas went too far. And that's the question this court's going to have to decide.”
The same panel of judges decided last month in a 2-to-1 decision to keep the law on hold as the legal battle over it plays out. Nielsen said that decision was based, in part, on “inaccurate factual premises” about how the law is supposed to work.
Nielsen focused specifically on the judges’ ruling that SB 4’s provision allowing local judges to order a migrant to return to Mexico tramples on the federal government’s sole authority to enforce immigration laws.
Nielsen said Texas doesn’t deport migrants under SB 4, but instead transfers them to the federal government.
“Texas takes them to the port of entry. And the United States then decides what to do,” he argued. Nielsen also said that Texas won’t again arrest a migrant if they aren’t allowed to enter Mexico.
“[The law] says that an alien must refuse to comply with the order, which would not be the case if the United States or Mexico says ‘no,’” he told Chief Circuit Judge Priscilla Richman.
Judge Andrew Oldham, who previously served as Gov. Greg Abbott’s general counsel, cast the dissenting vote in last month’s order that kept the law blocked.
On Wednesday, he repeatedly asked attorneys for the Biden administration about their reliance on a 2012 U.S. Supreme Court decision that Oldham said did not do what the federal government is asking – block a law before it has gone into effect.
In that case out of Arizona, the U.S. Supreme Court ruled immigration enforcement was largely under the purview of the federal government, although a provision of the law requiring police officers to inquire about a person’s immigration status was allowed to stand.
“Everyone in the courtroom agrees that Arizona is your best case, including me,” Oldham said. “And in that case, they did not give you what you're asking us to do. They did not give you field preemption as to every provision of a statute passed by a sovereign states legislature before it went into effect and was applied to anyone.”
The panel of judges did not rule Wednesday and it’s unclear when it will issue its opinion.
What is SB 4?
Passed in late 2023 by Texas’ Republican-controlled legislature, SB 4 permits local and state law enforcement officers to arrest people suspected of being in the country illegally. A first offense is a misdemeanor and increases to a felony for repeat offenses.
The law also permits a local judge – regardless of knowledge or training on immigration matters – to order a migrant to return to Mexico, regardless of nationality. The government of Mexico is on record opposing the law and has said it will not accept foreign nationals deported to that country.
Mexico’s government also said in a court brief that the law could sour the current relationship between the U.S. and Mexico.
Texas Republicans who favor the law have said it’s necessary due to the record number of unauthorized crossings into the country since President Biden was elected. They argue that if the federal government won’t do its job, Texas has a right to step in.
Opponents – including the Biden administration, El Paso County, and advocacy groups Las Americas Immigrant Advocacy Center and American Gateways – say SB 4 will lead to racial profiling.
What’s the status of the law?
The law can’t be enforced right now. That’s because the same three-judge panel of judges hearing Wednesday’s arguments already decided, in a 2-to-1 decision, that SB 4 should stay blocked while the case plays out.
That decision on March 27 came after a flurry of legal back-and-forth that saw the law paused, briefly put in place, and then blocked again.
Why was SB 4 blocked in the first place?
U.S. District Judge David Ezra ruled in late February that the law is likely unconstitutional because the federal government has jurisdiction over immigration matters.
“Several factors warrant an injunction. First, the Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government,” Ezra, who was appointed by former President Reagan, wrote.
“Second, SB 4 conflicts with key provisions of federal immigration law, to the detriment of the United States’ foreign relations and treaty obligations.”
The legislation was originally scheduled to go into effect March 5.
What can we expect from the three-judge panel hearing the case again?
It’s hard to predict what any court is going to do. But we do have some insight into what the judges think about ramping up state-based enforcement after last month’s decision to keep the law on hold.
When the panel will issue its ruling after Wednesday isn’t clear. But legal experts say it could come earlier than usual because of the panel’s earlier decision.
However, whatever the appeals court decides, it’s likely the case will ultimately be decided by the U.S. Supreme Court.
Editor's note: This story has been updated with information from Wednesday's hearing.
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