AUSTIN (Nexstar) — Texas’ strict immigration law, referred to as Senate Bill 4, remains on hold, pending a decision from the U.S. Fifth Circuit Court of Appeals.
The Supreme Court permitted the law criminalizing illegal entry to take effect on Tuesday afternoon. That decision did not consider whether the law was constitutional, but instead sent the case back to the appeals court. Late Tuesday night, the appeals court issued an order allowing a lower court’s previous block to stand.
A three-judge panel of the Fifth Circuit hosted oral arguments Wednesday morning. The hearing centered around the concept of field preemption— the idea that states can’t create new regulations relating to federal issues if the federal government already has.
“We are on the front line, and we are going to do something about it,” said Aaron Nielson, attorney for the State of Texas. “What Texas wants to do is be able to coordinate with the federal government. ”
Texas argued that SB4 “mirrors federal law,” and because Congress has failed to enact new border security legislation, the federal government hasn’t fully occupied the field. Illegal crossings are usually handled in a civil court, not a criminal one.
In response, the U.S. said SB4 is preemptive because immigration is an international relations issue, and illegal immigration is already a federal crime.
A spokesperson from the ACLU also testified against the bill, saying it would completely change immigration law and increase harm to Latin Americans in Texas.
He specifically called out a section of SB4 that punishes convicted immigrants who stay in the United States.
“There’s no practical difference between throwing somebody out of the country and ordering them to leave on threat of decades in prison,” the spokesperson said.
The case is being compared to 2012’s Arizona v. United States. Arizona’s law allowed law enforcement to arrest immigrants who did not possess registration documents on their person. The case was ruled in favor of the United States, with three of four sections of the law being labeled as preemptive.
Similarly, the appeals court is dealing with severability, or whether or not parts of SB4 can remain while certain sections are blocked. For example, the judges seemed to acknowledge that removal of persons is under congressional rule, but questioned whether the arrest provisions of the bill are valid.
The judges have a history in Texas. Judge Priscilla Richman is a former Texas Supreme Court justice, appointed to the 5th Circuit in 2005 by George W. Bush. Richman married Texas Supreme Court Chief Justice Nathan Hecht in 2022.
Judge Andrew Oldham is a Trump appointee who previously served as Deputy Solicitor General of Texas and a General Counsel to Governor Greg Abbott. He also worked as a law clerk for Supreme Court Justice Samuel Alito.
Judge Irma Carillo Ramirez is a Biden appointee who joined the court last year. She’s the first Latina judge on the court.
The appeals court did not give a ruling after Wednesday’s arguments. If the law stands, the Justice Department asked the courts to delay the enactment, allowing time to seek Supreme Court action.