EMERGENCY DOCKET

Supreme Court allows Texas to enforce state deportation law

The Supreme Court on Monday allowed Texas to enforce a controversial law that would allow state law enforcement officials to arrest individuals suspected of entered the United States illegally. Although the court did not provide an explanation for its decision, Justice Amy Coney Barrett – in a concurring opinion joined by Justice Brett Kavanaugh – contended that, in her view, the Supreme Court should not intervene at this stage because the lower court’s order that the Biden administration had sought to block was only a temporary one, issued as part of the appeals court’s power to manage its own docket.

Tuesday’s order was the latest chapter in a lawsuit filed earlier this year by the Biden administration to block enforcement of a Texas law, known as S.B. 4. The law, which was originally slated to go into effect on March 5, would make it a crime for noncitizens to enter Texas illegally and would allow state court judges to order noncitizens who entered the country illegally to return to Mexico. A parallel lawsuit, filed by El Paso County and two immigrants’ rights groups, was consolidated with the government’s case.

In late February, Sr. U.S. District Judge David Ezra issued an order, accompanied by a 114-page decision, barring Texas from enforcing the law while litigation continued. But the U.S. Court of Appeals for the 5th Circuit temporarily put Ezra’s order on hold.

That prompted the Biden administration and the other challengers to come to the Supreme Court earlier this month, asking the justices to lift the stay issued by the 5th Circuit and keep the status quo in place while litigation continues.

The Supreme Court then issued a series of orders, known as “administrative stays,” blocking the 5th Circuit’s ruling and keeping the law on hold to give the justices time to consider the Biden administration’s request.

Telling the justices that the law would “create chaos in the United States’ efforts to administer federal immigration laws in Texas,” the Biden administration urged the court to step in. It called S.B 4 “flatly inconsistent” with the Supreme Court’s decisions, dating back more than a century, making clear that the power to admit or deport noncitizens is a primary responsibility of the federal government. When Congress has passed a law that deals with those issues, the government writes, it trumps state laws like Texas’s.

The administration pointed in particular to the Supreme Court’s 2012 ruling holding that Arizona could not impose an additional penalty for failure to comply with federal immigration registration requirements. Similarly, U.S. Solicitor General Elizabeth Prelogar argued, Texas can’t impose criminal penalties or removal requirements.

Texas pressed the justices for permission to enforce S.B. 4 – which, it says, was enacted in response to an  increase in the number of people crossing the border illegally, and in particular to the greater influence of Mexican drug cartels and human trafficking of unaccompanied minors. Because the 5th Circuit has fast-tracked the Biden administration’s appeal, the state explained, setting oral arguments for April 3, the justices should wait for that court to weigh in rather than intervene now.

State laws, the state insisted, are only superseded when Congress clearly intended to do so. But neither federal law nor the Supreme Court’s decisions indicate that responsibility for enforcing federal immigration laws falls only on the federal government, the state argued. And there is no conflict between S.B. 4 and federal immigration law, the state maintained: S.B. 4 “mirrors rather than conflicts with federal law” because it “allows Texas to help enforce federal immigration laws.”

S.B. 4 is also consistent with the Constitution, Texas writes, which gives Texas the power to defend itself when it is “actually invaded.” The state war clause of the Constitution provides that “[n]o State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

The Constitution’s use of the term “invaded” in the state war clause “has never required an attack by a foreign state or a danger of conquest,” the state asserts. Instead, the state argues, it was intended to apply more broadly. For example, both before and after it became a state, Texas used military force to respond to “marauders” who entered Texas from Mexico. Texas has engaged in the same kind of permissible response here, it claims, “fighting back against cartels that ‘have increasingly acquired a transnational dimension’ and operate as a ‘potent paramilitary force.’”

The Biden administration countered that “[a] surge of unauthorized immigration plainly is not an invasion within the meaning of the State War Clause.” But even if it were, the administration continued, the clause does not allow states “to contradict the federal government’s considered response to any invasion that has occurred.”

In a brief, unsigned order, the court turned down the Biden administration’s request to lift the stay entered by the 5th Circuit.

In a five-page opinion, Barrett stressed that the court of appeals “has not entered a stay pending appeal,” but instead only a “temporary administrative stay.” Therefore, she noted, the court of appeals has not yet weighed in on whether Texas is entitled to a stay pending appeal, which “puts this case in a very unusual procedural posture.”

“So far as I know,” Barrett continued, the Supreme Court has “never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay.” In her view, the Supreme Court should continue that practice, because it would be “unwise to invite emergency litigation in this Court about whether a court of appeals abused its discretion at this preliminary step.”

Barrett acknowledged the Biden administration’s suggestion that the 5th Circuit has permitted these kinds of “temporary” stays “to linger for so long that they” effectively act as stays while the appeal is being litigated. Although the Supreme Court may have to address that question at some point, Barrett conceded, it does not need to do so now. “Before this Court intervenes on the emergency docket, the Fifth Circuit should be the first mover,” she concluded.

Barrett indicated that the court of appeals “presumably” can act “promptly.” But if it does not, she posited, the Biden administration can always return to the Supreme Court to seek relief.

Justice Sonia Sotomayor dissented from the court’s decision to deny the Biden administration’s request, in a 10-page opinion joined by Justice Ketanji Brown Jackson. She complained that, with Tuesday’s order, the Supreme Court gave “a greenlight to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional.” Although the Supreme Court “stands idle,” Sotomayor wrote, “[b]ecause I cannot, I dissent.”

Justice Elena Kagan filed a separate, brief dissent. She wrote that she would not allow S.B. 4 to go into effect because “the subject of immigration generally, and the entry and removal of noncitizens particularly, are matters long thought the special province of the Federal Government.” And although she acknowledged that temporary administrative orders like the one issued by the court of appeals in this case “have their place,” she argued that “a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”