Immigration Law

Supreme Court clears way for Texas to enforce immigration law for now

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Texas Gov. Greg Abbott

Texas Gov. Greg Abbott (R) listens to former President Donald Trump during a tour of the U.S.-Mexico border wall in June 2021 in Pharr, Texas. (Jabin Botsford/The Washington Post)

The Supreme Court on Tuesday cleared the way for Texas to immediately begin enforcing one of the nation’s harshest immigration laws, which opponents say would disrupt more than a century of federal control over international borders.

The divided decision was preliminary and urged 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 it is likely unconstitutional.”

The law, known as S.B. 4, makes it a state crime for migrants to illegally cross the border and allows Texas officials to deport undocumented individuals. It was passed last year amid a historic surge in border crossings—part of Gov. Greg Abbott’s (R) push to expand the state’s role in immigration enforcement, which historically has been a federal responsibility.

A lower court judge temporarily blocked the law, which was set to take effect on March 5, saying the statute is likely 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 unless the Supreme Court intervened.

Justice Samuel A. Alito Jr., who oversees emergency requests from the 5th Circuit, then delayed implementation of the law while the high court considered the matter.

The litigation 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 if it is legal for the state to erect its own barriers.

The S.B. 4 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 Biden administration, El Paso County and immigrant advocacy groups sued to block the law and have urged the Supreme Court to keep it on hold while litigation continues.

Solicitor General Elizabeth B. Prelogar, representing for 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 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.”

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