Texas’ SB 4 Ping Pongs Through the Court Process
FAIR Take | March 2024
On March 19, a three-judge panel of the Fifth Circuit Court of Appeals blocked Texas’ new immigration law, SB 4 from going into effect. The Fifth Circuit issued the ruling just hours after the Supreme Court said it would wait for a ruling from the Fifth Circuit before making its own decision.
Since Texas Senate Bill (SB) 4 was signed into law by Governor Greg Abbott on December 18, it has been ensnared in legal controversy. In January, the Department of Justice (DOJ) sued Texas to strike down the law, arguing it violated the Supremacy Clause and the Foreign Commerce Clause. The District Court for the Western District of Texas agreed with the DOJ and issued a preliminary injunction to keep SB 4 from going into effect while it considered the merits of the case. Texas appealed this decision and less than 48 hours later, the Fifth Circuit Court of Appeals issued an order to stay the District Court’s injunction, but it allowed seven days before the law would take effect, giving the federal government time to appeal.
The Biden administration appealed to the Supreme Court asking it to vacate the Fifth Circuit’s decision. On March 2, just before the law would take effect, the Supreme Court temporarily stayed the implementation of SB 4 while it decided whether to allow the law to go into effect while Texas’ appeal proceeds.
Then on March 19, the Supreme Court, while not deciding on the law’s constitutionality, allowed Texas to enforce SB 4. However, it asked the Fifth Circuit to decide whether the law can remain in effect during the ongoing appeal. While there was no opinion issued by the majority of the Supreme Court, Justices Amy Coney Barrett and Brett Kavanaugh issued a concurring opinion saying that the Supreme Court should avoid second-guessing the appeals courts when it comes to a short-term administrative stay but that the Fifth Circuit must promptly rule on whether the law can remain in effect during the ongoing appeal.
Hours after the Supreme Court allowed SB 4 to go into effect, the Fifth Circuit dissolved the administrative stay letting the district court’s injunction stand to keep SB 4 from going into effect. The Fifth Circuit also scheduled expedited oral arguments about the case for March 20.
At the same time the Fifth Circuit put SB 4 on hold, it scheduled oral arguments for the next day. Appearing before a three-judge panel of the Fifth Circuit on March 20, Solicitor General Aaron Nielson argued that Texas has a “right to defend itself.” On the flip side, lawyers for the DOJ argued that SB 4 was preempted by federal law. While it is unclear when the Fifth Circuit will issue its decision from yesterday’s hearing, the same three-judge panel is set to hold another hearing over the constitutionality of the law and the appeal by Texas of the injunction on April 3.
SB 4 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.
As this battle continues to play out in the courts, other states are considering legislation substantially similar to Texas’ SB 4. In Arizona, Governor Katie Hobbs just vetoed the Arizona Border Invasion Act, which, like Texas, would have made illegally entering the state from a foreign nation a crime. While Arizona’s bill will not become law, legislation similar to Texas’ SB 4 is likely to be enacted in Iowa. Senate File (SF) 2340 would allow Iowa state law enforcement officers to arrest illegal aliens who were previously deported or denied entry into the United States. This legislation just passed the Iowa legislature on March 19 and Governor Kim Reynolds has indicated she will sign it. “States have stepped in to secure the border, preventing illegal migrants from entering our country and protecting our citizens,” says Governor Reynolds. She continues, “Americans deserve nothing less. I look forward to signing SF 2340 into law.” It is probable that when SF 2340 becomes law, it will be challenged as well.