S.B.4 and Texas’ Battle over State-Level Immigration Enforcement
The polarizing debate over immigration has once again ignited a legal firestorm, this time centered around a controversial Texas law designed to regulate migration at the state level. Known as S.B. 4, this legislation, which criminalizes illegal immigration at the state level, has created a complex and contentious legal battle, sparking intricate back-and-forth proceedings within the judicial system. This debate is the latest clash between the Biden administration and Republican leaders in Texas, particularly Governor Greg Abbott, regarding the surge of immigration into Texas and the broader question of states’ roles in immigration enforcement. Governor Abbott has pursued a hard-line approach to immigration, creating a multibillion-dollar campaign to deter migrants, which included installing razor wire along the Rio Grande. In response, the Biden administration filed a lawsuit, leading to a Supreme Court ruling permitting the removal of the wire until it decides on the legality of Abbott’s action. The courts face a similar question around S.B. 4, weighing not only its current enforcement but also its constitutionality, thus confronting the broader issue of federal versus state power and control over immigration.
The Texas state statute S.B. 4 makes it a Class B misdemeanor to enter Texas without authorization with a punishment of up to six months in jail. Repeat offenders could face second-degree felony charges with a punishment of up to 20 years. The law also mandates state judges to order the deportation of convicted migrants to ports of entry along the U.S.-Mexico border. Crucially, S.B. 4 grants enforcement authority to Texas officials — empowering state officials instead of federal agents to arrest people suspected of crossing the border illegally. In response to S.B. 4, the Mexican government stated that it would not accept the return of any migrants from Texas. The law has also ignited political uproar with critics contending that the law will lead to racial profiling of Texans and violations of civil rights.
The Biden administration, alongside civil rights groups and El Paso County, challenged the law, arguing that it encroached upon the federal government’s authority to establish standardized national immigration policies. In response to the lawsuit, Judge David Ezra of the Western District of Texas issued a preliminary injunction blocking the law, stating that the plaintiffs were likely to win their case. Subsequently, Texas petitioned the Fifth Circuit to block Judge Ezra’s ruling. The court granted this request in the form of an administrative stay, an interim measure to allow the courts time to deliberate on whether to enact a formal stay, which would halt legal proceedings. However, the Fifth Circuit’s decision to block Judge Ezra’s ruling was swiftly appealed to the Supreme Court by the plaintiffs.
The Supreme Court upheld the Fifth Circuit’s decision, allowing Texas to implement the controversial law and dismissing the Biden administration’s request to lift the temporary administrative stay. As the appeal was an emergency application, the Court gave no reason for their decision, as is standard practice. However, Justice Amy Coney Barrett, alongside Justice Brett M. Kavanaugh, filed a concurring opinion emphasizing that the Court should refrain from intervening at this preliminary stage as the lower court’s order was only temporary. Barrett’s opinion, rooted in past precedent, emphasized the Court’s traditional avoidance of reviewing administrative stays, which are intended as short-lived measures preceding substantive rulings on stay motions. While the Supreme Court’s decision allowed the law to take effect, the Court urged the Fifth Circuit to expedite its stay proceedings.
Justice Sonia Sotomayer wrote a scathing dissent of the Court’s decision, raising fundamental concerns about the substance of S.B. 4 by contending that it disrupts the balance between federal and state authority. She asserted that for more than a century, the national government has maintained exclusive authority over the admission and expulsion of noncitizens, making the Supreme Court’s decision a notable departure from precedent. Furthermore, Justice Sotomayor criticized the Fifth Circuit for abusing the power of administrative stays, noting instances where they were put in place for months, and urged the Supreme Court not to condone such practices.
The Fifth Circuit responded quickly after the Supreme Court’s decision, scheduling oral arguments around the law’s legality and removing their pause on the lower court’s injunction, thus allowing the lower court to again block the implementation of S.B. 4. This split 2-1 decision included statements from the Judges that provide insight on how they may rule on the constitutionality of the law. Judge Priscilla Richman, joined by Judge Irma Carrillo Ramirez, emphasized that for nearly 150 years, the Supreme Court has ruled that the federal government exclusively has the power to control immigration. Judge Andrew Oldham, an appointee of President Trump, dissented, asserting that Texas possesses the authority to enact laws that represent the will of the people.
Presently, the Fifth Circuit is hearing arguments on the substance of the bill to decide whether to uphold the law or strike it down. The plaintiffs contend that the law’s enactment would create chaos in administering federal immigration laws and contravene established powers in the federal government’s purview. The plaintiffs invoked precedent established in Arizona v. United States (2012) wherein the Supreme Court ruled that Arizona could not impose additional penalties for individuals who did not comply with federal immigration registration laws. The Biden administration argued that similarly, Texas can not impose additional criminal penalties or police the removal of migrants.
In response, Texas argued that it is not clear that the responsibility for enforcing federal laws lies solely with the federal government and asserted that S.B. 4 merely enforces existing federal statutes. Texas additionally argued for the necessity of the law, stating that the influx of migrants was increasing the influence of drug cartels in Texas and causing a surge in human trafficking. Furthermore, they affirmed the law’s constitutionality, invoking the State War Clause. The clause stipulates that “[n]o State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Texas argued that the state is being invaded by cartels that operate as a paramilitary force, thereby justifying their right to respond.
Based on the Fifth Circuit’s recent ruling to allow the lower court to stop enforcement of S.B. 4 and the articulated positions of the judges, it appears likely that the court will rule against the constitutionality of the law. Experts anticipate that regardless of the Fifth Circuit’s decision, the case is likely to be appealed to the Supreme Court. Given that the law contradicts Arizona v. United States, it appears that the legal saga surrounding S.B. 4 reflects a deliberate effort by the Texas GOP and Governor Abbott to reshape immigration policy through a Supreme Court with a conservative majority by establishing a precedent of state authority in immigration enforcement.
Sylvie Watts is a sophomore at Brown University, concentrating in political science and computer science. You can reach her at sylvie_watts@brown.edu.
Mira Echambadi is a junior at Brown University, concentrating in International and Public Affairs and Applied Math. She can be reached at mira_echambadi@brown.edu.