Texas immigration law back at Fifth Circuit after SCOTUS ruling whiplash

(CN) — After the Supreme Court allowed a Texas immigration law to take effect for just a few hours, the state and the U.S. Department of Justice returned on Wednesday to the Fifth Circuit Court of Appeals, arguing over whether the law should remain blocked as challenges against it proceed.

Texas Solicitor General Aaron Nielson, called the law at the center of the fight, Senate Bill 4, a “modest but important statute.”

“It's modest because of mirrors federal law,” explained Nielson. “It's important because it helps address what even [President Joe Biden] has called a border crisis.”

The law that would criminalize illegal entry into the state. While it has yet to be implemented, it would essentially allow any state or local law enforcement officer to arrest anyone suspected of having entered the state unlawfully. State courts would be tasked with handling the cases and ordering the removal of migrants. Any person found to have violated a removal order faces 20 years imprisonment in a state jail.

Nielson said that the panel should vacate a federal judge's injunction of the law because the case does not belong in federal court, arguing that the Department of Justice does not have a cause of action and the immigration rights groups lack standing.

Also, the state’s lawyer said, SB 4 is not preempted by federal law, as the plaintiffs have claimed. “SB 4 does not address any exclusively federal field and it mirrors rather than conflicts with federal law,” Nielson said.

According to the injunction entered by U.S. District Court Judge David Alan Ezra in February, the U.S. Supreme Court’s ruling in Arizona v. United States invalidated states' attempt to regulate immigration. Nielson said that reading of the opinion was incorrect and that laws like SB 4 are permissible, so long as they mirror federal immigration laws. 

Chief U.S. Circuit Judge Priscilla Richman, a George W. Bush appointee, appeared skeptical. She noted that immigration regulation was not a power “historically exercised by the states.”

The judge said it seemed to her that the precedent in Arizona gave the federal government discretion on immigration enforcement, and that SB 4 "washes that away."

Nielson responded by saying that if the court found SB 4’s provision allowing the state to remove foreign nationals to be in conflict with federal law, then the severability clause should allow the state still to be able to arrest violators, just not remove them. 

The Department of Justice, along with immigration advocacy organizations and El Paso County, filed suit shortly after Republican Texas Governor Greg Abbott signed the bill into law. The plaintiffs say the law violated the supremacy clause of the U.S. Constitution, effectively giving the federal government total authority over the regulation of immigration. El Paso County and the organizations have also claimed the law could harm their operations.

Justice Department attorney Daniel Tenny argued Wednesday that courts have routinely ruled that the federal government has sole authority over immigration enforcement.

U.S. Circuit Judge Andrew Oldham, a Donald Trump appointee, challenged his assertion and asked Tenny to point to a case where the courts said that arresting undocumented migrants was the exclusive right of the federal government.

“This entire scheme is exactly what the Supreme Court warned against in Arizona,” Tenny answered.

The judge then asked Cody Wofsy of the American Civil Liberties Union, who argued on behalf of El Paso County and the immigrant advocacy organizations, to explain how his clients can overcome the state’s lack of standing argument.

“The district court found that these plaintiffs would indeed be severely harmed by SB 4 going into effect… and that makes sense because this is not sort of a marginal change,” Wofsy explained. “We are talking about SB 4 radically altering the state of immigration in the state of Texas.” 

As the hearing came to its end, Nielson asked the court to stay the lower court’s injunction — but noted that, were the court to find SB 4’s arrest or removal provisions problematic, it has the power to modify the injunction and block only those provisions as the case proceeds.

In addition to Chief Judge Richman and Judge Oldham, U.S. Circuit Judge Irma Carrillo Ramirez also heard arguments on Wednesday but did not ask any questions of the parties.

Wednesday’s hearing came on the heels of a whirlwind back-and-forth over the law between the Supreme Court and the Fifth Circuit. Hours after the US Supreme Court allowed SB4 to take effect on Tuesday, the New Orleans-based appeals court put the law back on ice. 

Despite how the judges rule on the injunction against SB 4, the case is all but guaranteed to return to the Supreme Court for further consideration.

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