SCOTUS Allows Texas SB4 Immigration Enforcement: Read It For Yourself
The Supreme Court has ruled on the controversial Texas SB4 immigration law, clearing the way for the state to enforce its own immigration laws.
Read the SCOTUS decision allowing Texas SB4 immigration enforcement for yourself here:
Texas SB4 Immigration
The Supreme Court on Tuesday cleared the way for Texas to begin enforcing, for now, one of the nation’s harshest immigration laws, which opponents say would disrupt more than a century of federal control over international borders.
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 record 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.
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. The order drew dissent from the three liberal justices, two of whom said the majority was inviting “further chaos and crisis in immigration enforcement.”
“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” wrote Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson.
Texas Attorney General Ken Paxton called the high court’s order Tuesday a “huge win,” and a defeat for the Biden administration, and said the state law is “now in effect.”
The measure 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, 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 well reasoned points of the dissent don’t really overcome the majority’s determination that they don’t think this is ripe for SCOTUS rulings. They really want the lower courts to hash everything out first, or so it seems.Report
I think that the fundamental problem is one of the whole “what is a law *FOR*?” thing.
If you have a law but don’t enforce it… then what? What does that mean?
I suppose, in theory, it could stay on the books forever. There are probably stupid laws on the books in your town right now (about spittoon placement, maybe) that just never sunsetted.
So we have this law. The law was passed by the legislature and signed by the executive and it has not yet sunsetted or been repealed.
So now what?
And everybody turns to SCotUS. Now what?
QUICK! PUNT!!!Report
Two questions:
If this law only targets people entering from Mexico, is it discriminatory in anyway? Obviously, Texas’ only land border is with Mexico, but they do have a coastline and international imports, so theoretically folks could enter illegally from other countries.
2.) How does Texas plan to carry out these deportations? If their plan involves Texas state authorities entering Mexican territory, what would be the potential ramifications of that?Report
Let’s say that there’s a budget of 100% for border intervention.
Let’s say that there are four borders:
Border A
Border B
Border C
and Border D
Border A has 3% of undocumented visitors passing through it.
Border B has 94% of undocumented visitors passing through it.
Border C has 2% of undocumented visitors passing through it.
Border D has 1% of undocumented visitors passing through it.
Is it discriminatory to not accolate the budget 25/25/25/25? There are four borders, after all.Report
I have an amusing idea of a Texas State Police contingent that, for statutory-compliance reasons, is permanently stationed in Hawaii.Report
I think that they could argue that it has to stay in Texas.
So they’d have to have border guys there at Texarkana.Report
I don’t know. That’s not my question. Why’d you reply to me with a completely different question?Report
Because your question seemed to imply that policing a border more than another border might be discriminatory.
I was asking whether the fact that one border may have more people crossing it than another border would have an impact on judging whether putting more enforcement where the laws were more often broken would necessarily imply discrimination was taking place.
Because if your answer was “it doesn’t matter whether one border has more people crossing it than another, all of the policing should be spread around equally”, I have a handful of counter-arguments to that.
But I don’t know whether that’s your argument. So I was asking for clarification before I would be able to give something closer to a full answer to your question.Report
I’m pretty sure that the illegal entrants haven’t been primarily Mexican nationals for a long time. Central Americans from further south are a significant number but from what I read it now encompasses people from everywhere, including the old world.
Here’s an article from February saying that the fastest growing group is middle class Chinese (though to be clear, these crossings are in CA not TX).
https://www.cbsnews.com/news/chinese-migrants-fastest-growing-group-us-mexico-border-60-minutes-transcript/Report
Way more people are coming from Mexico than any other country (depending on the year, it’s 2-4x as many people than from any other country), but the majority of people are now not coming from Mexico, because so many people are coming from so many other countries. At this point, Mexican immigration is about 1/5 to 1/3 of the total at the southern border, changing from year to year.
The number of Chinese immigrants crossing from Mexico into the U.S. is increasing, but it remains a tiny fraction of the total.
I believe the fastest growing group over the last few years, especially in terms of absolute numbers (going from like 10k a year to over 200k), has been people from Cuba.Report
Yes, poorly phrased on my part.
What I was trying to get at is that it has become an entry point for people from around the world, not just the crossing of Mexicans that’s been happening to varying degrees for generations.Report
An interesting, largely unmentioned group that’s gone from basically 0 to 5 figures crossing at the southern border almost overnight is people from Turkey. I assume this has to do with the current government over there, but whatever the reason, reinforces the “from around the world” point.Report
If I’m reading the issue with Administrative Injunction correctly, proper Court speak might be that Texas can’t not be stopped from enforcing SB4, but that it might could be stopped if the lower court had ruled on the facts rather than punting directly to SCOTUS?
Like, I’m not really seeing any tea leaves on how they will rule once the lower court does what it should do and issue a ruling.
On the theoretical plain I could see TX prevailing if the facts are close to this:
SB4 takes what is illegal by Federal Statute and enforces those laws in principle within their jurisdiction… this is actually appropriate as the Federal Govt cant ‘commandeer’ the local law enforcement to enforce Federal laws.
If you compare to Drug/MJ enforcement, we see a similar matter where Federal laws on Drugs are a superset of state laws on Drugs and different states have different laws while (until recently) adhering to the general principal that an illegal substance on Federal Schedules is illegal in the States. In this scenario, the States are legitimate actors in policing Drug Activity within their jurisdictions in ways that ought to align with Federal statutes. (well, in theory, once upon a time).
On the theoretical plain I could see TX losing if the facts are close to this:
SB4 runs contrary to Federal immigration laws (not as to enforcement/specifics) but because they exceed their policy making authority with regards some aspect of immigration. Specifically, the brief highlights that Asylum policy – as it stands today – might not be respected by SB4.
In which case, these illegals (term in the brief) are not illegal, but rather pre-hearing Asylum seekers. Now, TX might argue that the law states that Asylum seekers must present themselves to approved points of entry and an EO stating otherwise isn’t the same as a statute that they (the State) need to abide by, even if Border Patrol *does* have the authority to vette Asylum requests outside of approved entry points (if I’m recalling the current arrangement correctly) — and therefore they can arrest any illegals who haven’t surrendered to Border Patrol for Asylum as something they couldn’t adjudicate otherwise; arguing in effect that migrants seeking Asylum should do so as prescribed by law.
But, in any case… that’s the sort of scenario where I could see the Court saying that TX cannot have an immigration policy that is different from the US and therefore SB4 as written is unconstitutional.
The political problem as I see it, is that while the Asylum Policy argument might be good for knocking down SB4, it highlights the growing awareness that Asylum Policy as a whole is borked. So a partial win until SB4 is recalibrated to account for Asylum at the expense of highlighting even further that Asylum Policy is being abused.Report
If you really want to bore yourself with more legal reading this is the doctrine you are inching towards, and that may be at issue:
https://www.law.cornell.edu/wex/preemption#:~:text=The%20preemption%20doctrine%20refers%20to,two%20authorities%20come%20into%20conflict.Report
Thanks… yes subsidiarity (my preferred term) or which law supercedes is baseline here… which is why I think some of the breathless takes that TX can’t pass ‘any’ law with regards to migrants who by statute ‘illegally’ cross the border is missing the fact that if properly constructed a TX (or CA or MN) law would be ordinary subsidiary laws dealing with illegal border crossings — in line with or subsidiary to Federal laws.
Admitted that there might be some grey areas of what exactly happens after arrest and incarceration… but that’s mostly bluff calling on the Feds. I’m sure the Feds could assert authority to remove/deport or take custody of any migrants who cross illegally — but they already lack the facilities and ability to do so.
My gut tells me that it’s more likely that TX is overreaching SB4, but subsequent iterations will depend on how SCOTUS comments on what part of the law was overreach and why.Report
A few hours after the Supreme Court ruled that Texas was allowed to do this, an Appeals Court ruled “Nope!”
Here’s the subhed: “The surprise ruling came hours after the U.S. Supreme Court cleared the way for S.B. 4 to take effect during legal challenges”.
I am meditating upon whether the judges who made this ruling were aware of the concept of 2nd-order effects.Report
Jaybird, there’s a sticker right there on the side of the Death Laser saying “ONLY USE ONE TIME AND ONLY ON THE BAD GUYS”. It’s right there. Why do you think there would be any problems? Clearly you’re just a right-wing Trump supporter who’s hiding what he really means behind a fug of obscurationism.Report