The Supreme Court on Tuesday allowed a Texas law to take effect that enables state law enforcement to arrest people they suspect are illegally entering the United States from Mexico.
The three liberal justices publicly dissented from the court’s order clearing the way for the controversial statute, SB4. The order is not a final decision, and the case could return to the high court.
The Biden administration had urged the justices to block the law, passed by Texas’s Republican-controlled legislature last year, asserting it is an “unprecedented intrusion into federal immigration enforcement.”
“There is no ambiguity in SB4,” U.S. Solicitor General Elizabeth Prelograr wrote to the justices. “It is flatly inconsistent with federal law in all its applications, and it is therefore preempted on its face.”
Signed by Texas Gov. Greg Abbott (R), the far-reaching statute makes illegal immigration a state crime, enabling state and local law enforcement the authority to arrest undocumented migrants, who could then face deportation or jail time.
The three liberal justices chastised the majority’s decision to put the law into effect.
“Today, the Court invites further chaos and crisis in immigration enforcement,” wrote Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson.
Justice Elena Kagan dissented separately.
In defending the law, Texas argued the state has a constitutional right to defend itself and the Biden administration was unwilling or unable to defend the border.
“Plaintiffs urge the Court to rush straight to the merits of their claims,” the state responded in court papers. “But these cases do not belong in federal court at all—even apart from the fact that no state court has yet had an opportunity to construe any provision of S.B.4.”
After the Justice Department sued, a federal district judge blocked SB4. But the 5th U.S. Circuit Court of Appeals later issued an administrative stay that would’ve allowed the law to temporarily take effect.
To keep the law on hold, the Justice Department then sought emergency relief from the Supreme Court, joined by a similar application filed by the County of El Paso, Texas, and two immigrant rights groups.
Administrative stays are typically only implemented for a brief period until the court can decide whether to issue a longer pause, but the Justice Department contended the 5th Circuit has allowed them to linger.
“So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay,” Justice Amy Coney Barrett, joined by fellow conservative Justice Brett Kavanaugh, wrote in an opinion agreeing with the disposition.
“I would not get into the business.”
But, the duo did caution that the Supreme Court might have to rein things in at some point.
“The time may come, in this case or another, when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. But at this juncture in this case, that conclusion would be premature,” Barrett wrote.
Justice Samuel Alito, who by default handles emergency applications arising from the 5th Circuit, had issued orders preventing the law from taking effect until the full court acted on Tuesday.
He and three other conservatives on the high court did not publicly disclose their votes, but the court’s decision means that most of them would’ve had to join Barrett and Kavanaugh to form the majority.
The legal battle now returns to a three-judge panel on the 5th Circuit, which is hearing Texas’s appeal on the merits. The court agreed to expedite its review, scheduling oral arguments for April 3. The losing party could then appeal the case back to the Supreme Court.
Texas has proven to be one of the most aggressive states on immigration, both in terms of lobbing lawsuits challenging a suite of Biden administration policies and in rolling out their own immigration enforcement measures, all a part of Abbott’s Operation Lone Star.
Those measures have consistently pushed the Biden administration to argue the state is overstepping its authority in trying to manage an issue assigned to the federal government.
Last year the state installed buoys amid the Rio Grande, hoping to block migrants crossing the river to reach the U.S.
The move was challenged by the Justice Department, who argued it was the federal government that reserved the right to manage navigable waters. In December, the 5th Circuit Court of Appeals ordered them removed.
The state also tangled with the Biden administration again with the installation of concertina wire, something the Department of Homeland Security argued risked injury to border agents and migrants and made it more difficult for officers to carry out their jobs.
In a 5-4 vote, the Supreme Court initially sided with the federal government, allowing them to cut the wire while the lawsuit continues.
Updated 2:49 p.m.