The controversial law, known as Senate Bill 4, is currently on hold after whiplash court rulings March 19. The U.S. Supreme Court briefly allowed the law to take effect, but less than nine hours later, the 5th U.S. Circuit Court of Appeals halted the law while judges determined whether it is constitutional.
The appeals court did not immediately make a decision following the March 20 hearing.
The background
SB 4 would allow Texas law enforcement to arrest migrants suspected of illegally entering Texas from Mexico. Undocumented immigrants would face up to six months in jail or a $2,000 fine, while repeat offenders could face felony charges.
Judges could essentially deport migrants by ordering them to return to Mexico. Local police officers would escort migrants to ports of entry and likely turn them over to federal authorities.
The law, a top priority of Gov. Greg Abbott, is Texas’ latest attempt to curb the flow of immigration into Texas. Historically, only the federal government has had the authority to enforce immigration restrictions and deport migrants.
During a previously-scheduled speech March 20, Abbott said Texas would continue to arrest migrants for trespassing and other charges while SB 4 is blocked.
“Even without SB 4, Texas has the legal authority to arrest people coming across the razor wire barriers on our border,” Abbott told a crowd at the conservative Texas Public Policy Foundation’s annual conference in Austin. “The Texas Department of Public Safety has already arrested more than 40,000 people who have come across our border illegally.”
SB 4 was originally scheduled to take effect March 5, but a federal district judge blocked it last month after the federal government and immigration advocates sued Texas over constitutional concerns. SB 4 has since moved through the federal court system.
Zooming in
Speaking to three judges on the 5th Circuit court, Texas Solicitor General Aaron Lloyd Nielson said Texas has “a right to defend itself” against record illegal border crossings. The state wants to work with the federal government to enforce immigration restrictions, he said.
“SB 4 is a modest but important statute,” Nielson said. “It's modest because it mirrors federal law; it's important because it helps address what even the president has called a border crisis.”
Chief judge Priscilla Richman appeared skeptical of Nielson’s argument. She raised a series of hypothetical questions about how Texas would enforce the law: What if federal officials refuse to carry out state deportation orders? What if a migrant illegally crosses the border into Arizona and later moves to Texas—would SB 4 apply to them?
Nielson said he did not know how those cases would be handled and implied the state did not immediately begin enforcing the law after it briefly took effect March 19.
“This is uncharted because we don't have any cases on it,” Nielson said.
Richman pointed to a 2012 ruling in which the Supreme Court struck down portions of an Arizona immigration enforcement law that justices said encroached upon federal authority. The Arizona law would have allowed state police to arrest people suspected of being in the country illegally.
“Decisions of this nature touch on foreign relations and must be made with one voice,” Richman said, reading from the ruling.
“It goes on and on and on,” she said. “It talks about the discretion—even if they're here, unlawfully, the United States can decide not to remove them. It seems to me [SB 4] washes that away.”
Judge Andrew Oldham, who formerly served as Abbott’s general counsel, questioned why the court should block the law before Texas officials can enforce it.
“We have no clue how any of this would actually be enforced, because there's not been a single person who's been arrested, not a single person who's been ordered removed, not a single state judge who's had occasion to adjudicate a single provision of this in any way,” Oldham said. “So we're predicting all of this, and we have to say all of it is unlawful and therefore the entire thing will never go into effect?”
The other side
Attorneys for the U.S. Department of Justice and immigrant rights groups argued SB 4 is preempted by federal law. They said Texas is trying to go further than Arizona did over a decade earlier.
“This entire scheme is exactly what the Supreme Court warned against in Arizona,” DOJ lawyer Daniel Tenny said. “The Supreme Court said the federal government has to have control over the immigration system.”
SB 4 was designed “to remove people from the country,” argued Cody Wofsy, an attorney for the American Civil Liberties Union.
“There's no practical difference between throwing somebody out of the country and ordering them to leave on threat of decades in prison,” Wofsy said. “[SB 4] is creating an entirely new system where people are going to be subjected to a state-made, state-run system with no access to federal relief or federal discretion.”
Looking local
Local officials in some of Texas’ most populous counties have raised concerns about the implementation of the law.
In a March 19 statement, the Austin Police Department said “it will be unlikely that its officers will have cause to make warrantless arrests under SB 4. ... It is vital for the community to understand that APD will continue to follow its policies and state law that prohibit racial profiling.”
In November, Travis County leaders said they expected to spend at least $9 million annually to enforce SB 4.
Fort Worth Police Chief Neil Noakes said his department would work to keep its diverse community safe.
“Although we will always follow the law, the primary responsibility for immigration enforcement and border protection should be left to our federal and state partners,” Noakes said in a pre-recorded video posted to X, formerly Twitter.
Harris County Judge Lina Hidalgo, who was born in Colombia, said border security issues should be fixed in coordination with President Joe Biden and Congress.
“I’m an immigrant myself and I lead a massive county where almost 25 percent of the population are immigrants,” Hidalgo said in a statement. Under SB 4, it's conceivable that an anti-immigrant officer could arrest someone for little more than them ‘looking like an immigrant.’ That possibility alone makes our community nervous, and with good reason.”
Stay tuned
A second hearing is scheduled for April 3 in the 5th Circuit court. The judges did not say if they would issue a ruling before that date.
