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The 5th U.S. Circuit Court of Appeals heard oral arguments Wednesday to determine the constitutionality of a Texas law that would allow state law enforcement to arrest people suspected of entering the state illegally from Mexico.
Senate Bill 4, or SB 4 as the bill is known, creates a Class B misdemeanor for illegal entry that can be punished with up to 180 days in county jail and/or a fine up to $2,000. A repeated offense is elevated to a state jail felony. The law also gives a judge or county magistrate the ability to order a person to return to Mexico.
The lawsuit against SB 4, filed by the American Civil Liberties Union of Texas and the U.S. Department of Justice, alleges that the law is unconstitutional because the Supreme Court has previously determined that immigration enforcement falls to the federal government. Texas has argued that the Joe Biden administration has neglected its federal immigration enforcement duties and that the state constitution enshrines its right to fend off an invasion from a foreign enemy.
If allowed to go into effect, the law could have a widespread impact on immigrant communities in Texas, as well as set a precedent for states’ role in immigration enforcement.
“It could be that states now have the ability to create their own pseudo-type integration laws and be able to enforce them,” said Vanessa Ruiz, an immigration lawyer who is based in Texas for De Castroverde Law Group. “That is the scary thing, especially for us as practitioners, because instead of one governing body, now we would have to worry about each state being different, each state having its own say in it.”
On Wednesday, Texas Solicitor General Aaron Nielson argued that some applications of the law could be considered legal, and admitted Texas legislators may have “gone too far” with the law. He pressed lawyers for the U.S. government about a series of hypothetical cases where the law could be implemented without interfering with federal law, such as escorting migrants to the port of entry and handing them over to Customs and Border Protection. A lawyer for the U.S. government said Texas was trying to “rewrite SB 4 from the podium.”
Gov. Greg Abbott and Attorney General Ken Paxton did not immediately comment on the case after arguments Wednesday. Paxton has previously said he will “do everything possible to defend Texas’s right to defend herself against the catastrophic illegal invasion encouraged by the federal government.”
The legal challenge to SB 4 has ricocheted between a federal appeals court and the Supreme Court since a temporary injunction was issued on Feb. 29. It briefly went into effect on March 19 only to be halted hours later. The law is currently blocked from going into effect by an injunction that the appeals court decided to keep in place on March 26.
As of Wednesday morning, the 5th Circuit of Appeals had not yet issued a ruling. The case is expected to make its way back to the Supreme Court, which has not yet ruled on the merits of the case.
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