Supreme Court Puts Texas’ S.B. 4 on Hold Until March 13

FAIR Take | March 2024

The United States Supreme Court issued a temporary stay on the implementation of Texas’ new state law, S.B. 4. That law, passed by the Texas legislature in November and signed by Governor Greg Abbott in December, was slated to go into effect March 5. However, the stay issued by the Supreme Court postpones the law’s effective date until at least March 13, while the Court considers whether to permit the law to go into effect while the appeal remains pending.

The Supreme Court’s decision to stay S.B. 4 follows a flurry of judicial activity over the past few weeks. In January of this year, the Department of Justice (DOJ) sued Texas to strike down the law, arguing it violated the Supremacy Clause and the Foreign Commerce Clause. After weeks of deliberation, the District Court for the Western District of Texas issued an opinion last week agreeing with the DOJ and stopped the legislation from going into effect. In less than 48 hours, a three-judge panel on the Fifth Circuit Court of Appeals stayed the district court’s ruling, allowing the law to take effect as scheduled while the case proceeded. But Monday night, the Supreme Court decided to temporarily stay S.B. 4 while it decides whether to allow the law to go into effect while Texas’s appeal proceeds.

S.B. 4 is the latest effort by the State of Texas to stem the wave of illegal immigration and violence at the southern border. It creates a state crime of illegal immigration in Texas. It prohibits the illegal entry of any alien from a foreign nation into Texas except at an official port of entry. Under the bill, aliens charged with illegal entry have several defenses. These include: that the alien was granted lawful presence, asylum, or DACA by the federal government, or that the alien’s conduct did not violate the federal statute prohibiting illegal entry (8 USC 1325). The first offense is classified as a misdemeanor; a second or subsequent offense is a felony. Upon conviction, a judge must order the alien to return to the country from which s/he entered and order the alien transported to an official port of entry upon completion of the term of imprisonment. Prior to conviction and in lieu of continued prosecution, a judge may issue the order of removal so long as probable cause exists and the alien agrees to the order.

In its analysis of S.B. 4, the district court focused mainly on the Supremacy Clause of the U.S. Constitution, which generally provides that federal laws take precedence over state laws. Relying heavily on the Supreme Court’s 2012 decision in Arizona v. United States, the court first concluded that Congress had enacted a “pervasive regulatory framework” governing immigration that left no room for state actions to supplement it. According to the court, S.B. 4 attempted to create a “concurrent” immigration system with different methods of enforcement. Second, the district court found that S.B. 4 conflicted with the objectives of Congress by allowing enforcement of immigration laws without federal supervision, by foreclosing the government’s ability to apply prosecutorial discretion, and undermining the federal government’s current foreign policy goals.

Ultimately, the district court held that S.B. 4 could not stand because it was preempted by federal immigration law and thus it violated the Supremacy Clause of the U.S. Constitution. Based on this analysis, the court determined that the Department of Justice was likely to win on the merits of the case and enjoined Texas from implementing the law.

Texas made several arguments that federal law does not preempt S.B. 4. First, it argued that preemption does not apply because the federal government has “abandoned the field,” or in other words, abandoned the regulation of immigration by abandoning immigration enforcement. The District Court rejected this argument, noting that the DOJ had filled the record with data on its arrests and removals of illegal aliens over the past three years. It also noted that in addition to arrests and removals, “the United States has engaged in successful diplomatic talks to reduced unauthorized immigration” and that it had secured commitments from other governments to advance two programs designed to reduce immigration flows: “the Root Causes Strategy” and the “Collaborative Management Strategy.” Based on this record, the court found that DHS’s actions do not constitute a “genuine abandonment” and said that “while Texas may disagree with the number of removals or the way that DHS goes about immigration enforcement, it cannot legitimately maintain that DHS does nothing at the southwest border.”

The State of Texas also argued that any preemption arguments with respect to statutes are superseded, or trumped, by article I, section 10, clause 3 of the U.S. Constitution. That clause allows states, “without the Consent of Congress,” to engage in war when “actually invaded, or in such imminent danger as will not admit of delay.” Texas argued that this self-defense clause in the constitution supersedes federal law and grants Texas the right to defend and protect itself from an actual invasion.

The district court was clearly reluctant to even entertain this argument. “To discuss ‘invasion’ at length,” it wrote, “is to take the argument more seriously than it deserves.” Nevertheless, the court proceeded to analyze – and dismiss – the defense based on invasion. First, the court concluded that the word invasion does not apply in the context of immigration but instead refers to an “armed, hostile, organized force entering an area to conquer or plunder.” Giving short-shrift to Texas’ arguments regarding the cartels, the court said, “Texas cannot genuinely maintain that noncitizens crossing the border are an organized military force aimed at conquest or plunder.” Furthermore, it wrote, “[e]ven as Texas points to cartel violence, it cannot maintain in good faith that the cartels will imminently overthrow the state government.” And even if immigration constituted an invasion, the court argued, the enactment of S.B. 4 is not a wartime measure. If it were, it would be preempted by the federal government’s wartime powers.

The question for the Supreme Court is now whether the law should be allowed to go into effect while Texas appeals the district court’s ruling. If the Supreme Court allows the law to proceed, it could serve as a major deterrent to illegal immigration along the Texas-Mexico border. That could significantly impact California and Arizona, which have already seen an increase in illegal border crossings in recent months as Texas continues to introduce more and more barriers along the Rio Grande to stop illegal migrants and drug cartel members from crossing.

Stay tuned to FAIR for more updates on this case.