AUSTIN (Nexstar) — Texas was back in court Wednesday as the state’s controversial new immigration enforcement law tries to come back to life, awaiting action in the Fifth Circuit Court of Appeals after the court blocked it pending further litigation last week.
If allowed to go into effect, Senate Bill 4 would empower state and local police to arrest suspected illegal immigrants and allow Texas judges to order them into Mexico. The Biden administration, civil rights groups, and immigrant advocates have sued to block the law, fearing violations of civil rights and federalism.
Texas concedes SB 4 may go “too far”
“They have tried to develop a statute that goes up to the line of Supreme Court precedent but allows Texas to protect the border. Now, to be fair, maybe Texas went too far. And that’s the question this court is going to have to decide,” Texas Solicitor General Aaron Nielson told the three-judge panel Wednesday.
Texas has long maintained that it has the power to enforce immigration law, citing the “invasions clause” of the Constitution and arguing that the influx of migrants constitutes an “invasion.” The federal government says the law is unconstitutional because it impedes its sole authority to regulate immigration.
Today’s admission was one of the state’s clearest acknowledgments that SB 4 is on shaky legal ground. Last year, the Texas Senate’s Chairman of Border Security Brian Birdwell said the law is unconstitutional.
Texas would focus SB 4 enforcement only on the border
SB 4 empowers state and local police in any part of Texas to arrest someone on suspicion of illegal entry, but the state says the law would only be enforced on the border itself.
“There wouldn’t be probable cause in almost all cases unless a Texas officer sees somebody crossing the border,” Nielson said.
Concerns over the possibility of racial profiling and improper arrests led civil rights groups like the American Civil Liberties Union to join the Biden administration in suing Texas over the law.
“It makes all of our communities less safe,” immigrant advocate and co-director of American Gateways Edna Yang told Nexstar. Yang says the communities she serves as already weary of the law.
“The conversations are really about fear,” she said. “About whether they’re going to be separated from their family, about whether, if they’re currently in an immigration process and they have a work permit, and they have a driver’s license, and they have a job, if they’re going to be affected by this law.”
Proponents have argued the law would only be reasonably applied if a law enforcement officer observes someone cross the border.
It’s not over yet
The legal drama over SB 4 has been compared to “ping pong” for weeks, and today was one of the most significant arguments over the basic merits of the law, but it’s not the final word.
It’s unclear exactly when the Fifth Circuit Court of Appeals may rule, but regardless, legal experts are certain this case will ultimately end in the U.S. Supreme Court.
“The administration admits there’s a crisis and a problem because politically, they’ve gotten themselves in a mess,” State Senator Charles Perry, the author of Senate Bill 4, told Nexstar in February. “I think the whole environments differ around this conversation when it gets to the Supreme Court.”