Think Immigration: Texas-Sized Whiplash

On Tuesday, March 19, 2024, the U.S. Supreme Court allowed the controversial Texas state law S.B. 4 to proceed in a 6-3 decision.  Hours later, the Fifth Circuit reversed course and stayed the law from being implemented.  The end result is that S.B. 4 is on hold, with the Fifth Circuit hearing arguments next week on whether this stay should continue, but it’s understandable if the back and forth left you with a sense of legal whiplash.   

Signed into law in late 2023 and expected to go into effect in early March, S.B. 4 swan dives into federal preemption by making it a Class B misdemeanor to cross or attempt to cross the border between Texas and Mexico between ports of entry, and elevates the state crime to a felony for re-entries.  This law would also “authorize – and in some cases require[] – Texas judges, who are not trained in immigration law and have no proper authority to enforce it, to order individuals deported.”  Notably, it’s possible that Texas attempting to meddle in immigration in this manner could interfere with the Biden administration’s ability to quickly deport people.  If Texas detains a foreign national for longer than 14 days on a state matter, they would no longer eligible for expedited removal under federal law.  Finally, the Mexican government has stated they will not accept deportations from Texas – or other state governments.   

If you’re wondering why this case sounds so familiar, you may be remembering the Supreme Court’s decision in Arizona v. United States a few years back, which overturned 3 of the 4 provisions of Arizona’s attempts to criminalize immigration due to federal preemption.  Federal preemption is a long-established legal concept stating in part that “States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.”  If stare decisis was still a reasonable thing to rely on, it’s hard to imagine the Supreme Court wasting its time re-litigating the question of whether states can muck about in legislating immigration enforcement.  

In today’s topsy-turvy post Dobbs world, it’s worth taking a moment to remember the late Justice Scalia’s opinion in Arizona.  Justice Scalia concurred in part and dissented in part, arguing that “[w]hat this case comes down to, then, is whether the Arizona law conflicts with federal immigration law” – and finding that it did not.  The former conservative justice’s approach appears to be prescient here, as Texas argues that S.B. 4 “mirrors rather than conflicts with federal law” and “allows Texas to help enforce federal immigration laws.”  Given the current composition of the Supreme Court, it is fair to ask the question: is Scalia’s interpretation the future of the federal preemption doctrine?  

Another of Texas’s arguments relies on the idea that a state has the power to respond to an “invasion” under the State War Clause.  You’d be forgiven for not remembering this clause, given that a state has gone to war exactly once in our history (trivia buffs: Maine’s Aroostook War).  The little-used clause states “No State shall, without the Consent of Congress . . . engage in War, unless actually invaded.”  Looking at footage of the border, Texas is making an extreme version of the tired and dangerous anti-immigrant “invasion” rhetoric by equating asylum-seeking families and children with armed military invaders.   

The legal question currently ping ponging through our court system is simply whether the law can take effect while the courts dig into the merits.  Arguments before the Fifth Circuit are scheduled for early April, and we can expect to see this case return to the Supreme Court on its merits.  Plenty of time for immigration attorneys to contemplate how much of an absolute mess state officials could inflict on asylum seekers by carrying out this state-level vigilantism.  

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