Flurry of Court Actions on Immigration Law Causing Confusion in Texas
Fifth Circuit panel gives no indication of whether it will allow state to arrest and deport migrants while law is litigated
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Elizabeth Findell
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Adolfo Flores
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Updated March 20, 2024 4:32 pm ET
Congress has spent decades attempting and failing to pass bipartisan legislation on immigration and border security. WSJ senior political correspondent Molly Ball explains how the latest border bill fell apart even before it reached the Senate floor, and what it means in an election year. Photo Illustration: Annie Zhao
EAGLE PASS, Texas—Legal turmoil over a Texas plan to arrest and deport migrants left state and border residents mired in confusion this week over whether the law would be allowed to take effect, a development that could upend more than a century of national immigration policy.
A volley of legal orders regarding the law, known as SB 4, came as the Supreme Court and Fifth Circuit Court of Appeals both chimed in on whether the law should remain stalled as courts weigh whether it is constitutional for states to set their own immigration policies.
An Austin-based federal judge blocked SB 4 last month, calling it an unconstitutional violation of federal powers. A decision on whether to keep it paused is pending from a three-judge appeals court panel who signaled differing opinions during a hearing Wednesday.
The hearing followed days of back-and-forth on the subject. A U.S. Supreme Court order blocking the law from taking effect was allowed to expire earlier this week before it was blocked again, minutes later. Another Supreme Court order allowed the law to take effect Tuesday, before the Fifth Circuit Court of Appeals halted it late Tuesday night.
Neither the appeals court nor the Supreme Court has yet ruled on the constitutionality of the law.
The Texas law makes it a crime to cross into the state illegally between ports of entry and allows state officials to order deportations of violators. The measure was passed by the Texas Legislature and signed last year by Republican Gov. Greg Abbott. The state’s Republican leaders and the Biden administration have been engaged in a protracted standoff over border policy.
The judges gave no indication of when they might take action on whether to continue the pause on the law’s enforcement.
Abbott signaled he would keep fighting to implement the law and called the brief allowance to do so Tuesday “clearly a positive development.” The Justice Department warned that allowing the law to begin would “throw immigration enforcement into chaos,” and undermine Washington’s enforcement powers.
In Eagle Pass, a small border city that has been the recent epicenter of Texas efforts against illegal immigration, the prospect of the new law has stirred an air of uncertainty and anxiety, police spokesman Humberto Garza said.
No arrests made under the law were immediately reported during the roughly eight-hour period the law was unexpectedly allowed to take effect Tuesday. Garza said the city’s department of about 65 officers would be required to enforce the law if it commences, but has no state instruction in how to do so. “We have no officers trained in immigration law,” he said.
Spokespeople for the Texas Department of Public Safety, which has been the primary agency handling the enforcement of the state’s border efforts, didn’t return messages seeking comment.
Even as SB 4 is tossed back and forth between the courts, the Eagle Pass police have fielded an increasing number of calls from residents reporting people they suspect are in the country without authorization, Garza said. The department will ask for guidance from state and federal authorities once the legal issues are settled, he said. “They’re playing volleyball with it over there,” he said. “We’re standing over here waiting for what it is we’re going to do.”
During the appeals court hearing Wednesday, Chief Judge Priscilla Richman, an appointee of former President George W. Bush, appeared skeptical of the law. She noted that no state previously had claimed the power to deport migrants and questioned how the state would carry out deportations and whether it would honor federal protections granted to people seeking asylum.
Migrants in Ciudad Juárez, Mexico, along the U.S. border near El Paso, Texas. PHOTO: HERIKA MARTINEZ/AGENCE FRANCE-PRESSE/GETTY IMAGES
Judge Andrew S. Oldham, a former general counsel to Abbott who was appointed to the court by former President Donald Trump, seemed to question whether all provisions of the law could immediately be seen as invalid.
“We have no clue how this would be enforced,” he said.
The third judge, Irma Carrillo Ramirez, a border native and President Biden appointee who remained quiet during the hearing, could cast a decisive vote if the other two disagree.
For three years, Texas has been surging thousands of state police and National Guard soldiers to the border, arresting migrants found on state or private property on state misdemeanor trespassing charges, busing migrants to northern cities and erecting barriers along the Rio Grande. The state has spent or allocated more than $11 billion to the effort, with limited measures of impact.
Governors from some 13 states have voiced support for Abbott’s efforts and sent their own National Guard, state police or both to assist with it since 2021.
Some states are now following Texas’ legislative approach in testing state authority. Iowa lawmakers this week passed a bill that would make it a crime to re-enter the state after being deported. People who previously left the U.S. while facing a removal order—and those who have been denied entry to the country—also could face charges under the Iowa legislation, which is expected to be signed into law by Republican Gov. Kim Reynolds. Law enforcement wouldn’t be allowed to arrest people who are at schools and religious institutions or those visiting healthcare facilities for treatment.
Arguments in the Texas case have touched upon a precedent set in 2012, when the U.S. Supreme Court struck down most of a sweeping Arizona immigration law, dubbed for its “show me your papers” provision. Abbott said in December that he would welcome overturning the Arizona precedent. Attorneys and judges evaluating SB 4 have noted that to do so could allow all border states to make their own decisions as to whom to allow into the country.
Attorneys for the state of Texas have argued that SB 4 works in concert with federal law, rather than conflicting with it. They said the state is trying to assist with a border crisis Republican leaders claim federal authorities have failed to adequately address.
“I would point the court to the State of the Union—I’ve never done that before,” said Texas Solicitor General Aaron Nielson. “Everyone is concerned about the border.”
Nielson, however, was unable to answer many questions about the specifics of what the law’s enforcement would look like. The biggest question remains how Texas would conduct deportations. Under the law, migrants would be taken to ports of entry to return to Mexico, regardless of their country of origin. Mexico has said it won’t accept deportees from the state of Texas.
“We are against this draconian law,” President Andrés Manuel López Obrador said Wednesday during his daily press conference, adding that foreign policy isn’t up to state governments. “We would not accept deportations, once and for all, from the Texas state government.”
If migrants returned to the port can’t leave, Nielson said they would be rearrested by state authorities. The law allows people to be imprisoned for up to 20 years in such cases.
“This is the first time, it seems to me, the state has said they have the power to remove illegal aliens?” Richman asked.
“It depends on what we mean by removal,” Nielson responded.
Nielson couldn’t say whether people who entered the country in other states, and then traveled to Texas, could be arrested under the law. Democrats and civil-rights organizations have raised concerns about racial profiling if authorities try to enforce the law far from the border, by questioning suspected violators of how they entered the country.
Daniel Tenny, an attorney for the Justice Department, said the entirety of the Texas law is clearly pre-empted by federal immigration powers. Even if the court thought only the removal provisions were pre-empted, however, he said it would be extraordinary to let them go into effect in the short term.
“I am really concerned first in people’s ability to understand what the law permits or doesn’t permit,” said Ruben Garcia, executive director of Annunciation House in El Paso, a nonprofit that works with migrants. “The other thing that is very, very disconcerting is the potential arbitrariness with which the state of Texas may choose to apply the law…You’re now going to involve a whole new cast of officialdom in the immigration equation—individuals who have no training at all.”
Amid the uncertainty, police departments in the state’s biggest cities sought to reassure residents that they wouldn’t enforce SB 4 until it is clarified by courts and wouldn’t use it as pretext for racial profiling. “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,” a Fort Worth Police Department statement said.
https://www.wsj.com/us-news/law/app...-sides-on-texas-immigration-law-8bf64de4
