Supreme Court Won’t Block, for Now, Aggressive Texas Immigration Law


The Supreme Court temporarily sided with Texas on Tuesday in its increasingly bitter fight with the Biden administration over immigration policy, allowing an expansive state law to go into effect that makes it a crime for migrants to enter Texas without authorization.

As is typical when the court acts on emergency applications, its order gave no reasons. But Justice Amy Coney Barrett, joined by Justice Brett M. Kavanaugh, filed a concurring opinion that said an appeals court must act before the Supreme Court intervenes.

The three liberal justices dissented.

“Today, the court invites further chaos and crisis in immigration enforcement,” Justice Sonia Sotomayor wrote. “Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens.”

The court’s order addressed just one aspect of the clashes between the White House and Gov. Greg Abbott of Texas, who has embarked on a multibillion-dollar campaign to deter migrants, including by installing razor wire along the banks of the Rio Grande and a barrier of buoys in the river.

The surge in migrants entering the United States has intensified a fraught battle over immigration policy, underscoring deep divisions between and sometimes within political parties. It has led to the impeachment by House Republicans of the homeland security secretary and the failure of a bipartisan Senate deal to increase border security.

The law in Texas, sometimes called S.B. 4, empowers state courts to order the deportation of migrants who enter the state without authorization and gives local law enforcement the authority to arrest those who cross the southern border unlawfully. The administration, civil rights groups and El Paso County challenged the law, saying it interfered with the federal government’s power to set immigration policy and to conduct foreign affairs.

In 2012, in Arizona v. United States, the Supreme Court endorsed broad federal power in those areas by a 5-to-3 vote.

“Arizona may have understandable frustrations with the problems caused by illegal immigration” while the federal government tries to address them, Justice Anthony M. Kennedy wrote for the majority, “but the state may not pursue policies that undermine federal law.”

The court’s composition has changed since then, and officials in Texas are hopeful that the current justices will alter the balance of power between the federal government and the states in the realm of immigration.

In a Supreme Court filing, Texas said its law was meaningfully different from the one at issue in Arizona. But if the justices disagreed, the filing said, “Arizona should be overruled as contrary to both statutory and constitutional text, structure and history.”

Judge David A. Ezra, of the Federal District Court in Austin, last month entered a preliminary injunction blocking the Texas law, saying the plaintiffs were likely to win on several grounds. “Over a century of Supreme Court cases,” he added, recognized that the Constitution gave the federal government the dominant role in addressing immigration.

Judge Ezra, who was appointed by President Ronald Reagan, rejected Texas’ argument that its law was authorized by a clause of the Constitution forbidding states from engaging in war “unless actually invaded, or in such imminent danger as will not admit of delay.”

He gave three reasons. Unauthorized immigration, he said, is not an invasion. Enforcing the state law is not engaging in war. And even if both things were true, Texas “would have to abide by federal directives.”

Texas asked the U.S. Court of Appeals for the Fifth Circuit to block Judge Ezra’s ruling and allow the law to go into effect while it hears an appeal. A divided three-judge panel of the appeals court almost immediately did so, without providing reasons. The appeal is scheduled to be argued on April 3.

The panel gave the plaintiffs a week to seek relief from the Supreme Court. After the plaintiffs filed emergency applications, Justice Samuel A. Alito Jr., who oversees the Fifth Circuit, extended the appeals court’s brief stay to allow the justices to consider the matter.

In the administration’s emergency application, Solicitor General Elizabeth B. Prelogar wrote that the Texas law amounted to “interference with the nation’s ability to speak with one voice in international affairs” and “would significantly harm the United States’ relationship with Mexico.”

She added that the law “would fundamentally disrupt the federal immigration regime to allow a single state to make unilateral determinations regarding unlawful entry and removal.”

In response, Texas said it “has the sovereign right to defend itself from violent transnational cartels that flood the state with fentanyl, weapons and all manner of brutality.”

In January, addressing another emergency application from the Biden administration, the Supreme Court allowed federal officials to cut or remove parts of a razor-wire barrier along the Mexican border that Texas had erected to keep migrants from crossing into the state.

But that ruling, by a 5-to-4 vote, was only an interim victory for the administration.

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