The Supreme Court’s decision was divided and preliminary, with two justices in the majority urging a lower court to quickly decide whether to allow the law to remain in effect while appeals continue. That approach drew dissent from the three liberal justices, two of whom said the majority was inviting “further chaos and crisis in immigration enforcement.”
“The Court gives a green light to a law that will upend the long-standing federal-state balance of power and sow chaos,” wrote Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson. They noted that a lower court judge had concluded that the law “is likely unconstitutional.”
Texas Attorney General Ken Paxton called the high court’s order Tuesday a “huge win” and defeat for the Biden administration and said the measure is “now in effect.”
The statute imposes state criminal penalties of up to six months in jail on noncitizens who illegally enter Texas from Mexico. Anyone accused of reentering the country illegally could face felony charges. Lawmakers also empowered state judges to order deportations to Mexico — without Mexico’s consent — and allowed local law enforcement personnel to carry out those orders. Judges may also drop state charges if a migrant agrees to return to Mexico voluntarily.
The litigation over the state law is the latest court battle between the Biden administration and Republican leaders in Texas over the proper role of states in immigration enforcement. In January, a divided Supreme Court said the Biden administration could remove razor wire that Texas had installed along the U.S.-Mexico border, until the courts determine whether it is legal for the state to erect its own barriers.
A lower court judge had temporarily blocked S.B. 4, which was set to take effect March 5, saying the statute is probably unconstitutional and “could open the door to each state passing its own version of immigration laws” and force the federal government to navigate a patchwork of regulations. But the U.S. Court of Appeals for the 5th Circuit quickly reversed that decision, without explanation, and said the law could be enforced, at least temporarily, unless the Supreme Court intervened.
The Biden administration, El Paso County and immigrant advocacy groups, which had sued to block the law, then dasked the Supreme Court to keep it on hold while litigation continues. Justice Samuel A. Alito Jr., who oversees emergency requests from the 5th Circuit, delayed implementation of the law while the high court considered the request.
As is customary in emergency matters, the majority did not explain its reasons on Tuesday for allowing the law to take effect. But Justice Amy Coney Barrett, joined by Justice Brett M. Kavanaugh, said it was premature for the justices to intervene at this moment, before the 5th Circuit had to decided whether to keep the law in effect while the appeal is underway.
They urged the 5th Circuit to act quickly and suggested the dispute could soon be back before the justices.
“If a decision does not issue soon, the applicants may return to this Court,” Barrett wrote.
Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said the high court has long recognized the federal government’s authority to admit and remove noncitizens.
She warned that the Texas law “prevents the Nation from speaking ‘with one voice’ in matters involving foreign affairs” and tramples on federal responsibilities that Congress has laid out. Implementing it, she said, could inflame tensions with Mexico, the largest U.S. trading partner, and lead to the deportation of migrants whose lives are in danger, a violation of federal law.
Texas Attorney General Ken Paxton (R) told the high court in filings that state law “mirrors rather than conflicts with federal law” and that states often coordinate border enforcement efforts with federal immigration officers.
Texas defended its law in part by invoking limited state war powers, suggesting that the influx of immigrants is akin to the imminent danger of an invasion. A provision of the Constitution, which in general prohibits states from engaging in war, includes an exception for when a state is “actually invaded, or in such imminent danger as will not admit of delay.”
“Texas is the nation’s first-line defense against transnational violence,” wrote Texas Solicitor General Aaron L. Nielson. The state, he said, “has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”
In response, the Biden administration said Texas officials are misreading the Constitution and insisted that a “surge of unauthorized immigration plainly is not an invasion within the meaning of the State War Clause.”
This is a developing story. It will be updated.