A federal appeals court has issued an order preventing Texas from arresting migrants suspected of entering the country illegally. The order came hours after the Supreme Court gave the state the green light to enforce its controversial new immigration law.
But what does the new law involve?
The SB4 law makes it a crime for individuals to cross the US–Mexico border illegally and gives law enforcement the authority to charge them with a Class B misdemeanour, which carries a maximum sentence of six months in jail. Second offenders could face second-degree felony charges and up to 20 years in prison.
Will the law go into effect?
The decision to block the law by the 5th US Circuit Court of Appeals comes weeks after a panel on the same court cleared the way for Texas to enforce it.
But a majority verdict by a three-judge panel of the appeals court late on 19 March ruled that the law should still not be enforced until further arguments are made before the court.
The Texas authorities had not announced any arrests made under the law while it was briefly enforceable.
Blow against Texas governor
The temporary order comes as a blow against Texas Governor Greg Abbott, who has championed the need for aggressive legislation to deter migrants from crossing the border, with tough penalties for those who do so.
The bill, which Mr Abbott signed in December, was set to go into effect earlier this month. The Justice Department as well as immigration advocacy groups petitioned federal courts to intervene and prevent the law from taking effect in the meantime.
The Biden administration then asked the Supreme Court to stay the law, which it did earlier this month and again last week.
But earlier on 19 March, the conservative majority on the top court said they would wait to issue a formal ruling or opinion on the emergency order until the Fifth Circuit did, allowing enforcement of the law to proceed until then.
Texas argues Constitution authorised state to defend itself
Texas has argued that the state was authorised to defend itself under Article I, Section 10 of the Constitution which allows states to engage in war on their own if they are “actually invaded”.
The Justice Department said the bill conflicts with federal law – typically the government body responsible for immigration enforcement.
The Supreme Court’s majority did not write a detailed opinion in the case, as is typical in emergency appeals. But the decision to let the law go into effect drew dissents from liberal justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.
“Although the Court today expresses no view on whether Texas’s law is constitutional, and instead defers to a lower court’s management of its docket, the Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo,” Justice Sotomayor wrote.
‘A law that will upend the longstanding federal-state balance of power’
“The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos when the only court to consider the law concluded that it is likely unconstitutional,” she said in a blistering dissent joined by Justice Jackson.
Supreme Court Justice and Donald Trump-appointee Amy Coney Barrett suggested her vote in favour of allowing the law to be enforced stemmed from technicalities in the appeals process rather than agreement with Texas on the substance of the law.
“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. I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal,” she wrote in a concurring opinion joined by fellow conservative Justice Brett Kavanaugh.
SB4 just one of numerous legislative moves
SB4 is just one of Mr Abbott’s numerous legislative moves that seek to curb the number of undocumented immigrants coming into the US from across the state’s border with Mexico.
The legislation has been compared to Arizona’s Senate Bill 1070, the so-called “show me your papers” law that allowed police to arrest anyone they suspect of being undocumented immigrants.
The Supreme Court partially struck down SB1070 in 2012 but upheld a provision permitting police to demand anyone they believe to be undocumented to hand over their papers.
Much like with Arizona’s SB1070, opponents of SB4 say the law would likely be rooted in racial profiling.
‘We have long warned that this law will separate families’
In a statement from the American Civil Liberties Union, civil rights groups said SB4 “bypasses federal immigration authority and threatens the integrity of our nation’s constitution and laws”.
“We have long warned that this law will separate families, lead to racial profiling across the state, and harm people across the state as Governor Abbott continues his relentless campaign against people who are immigrants,” they said.
On Monday 4 March, the Department of Justice asked the Supreme Court to block the law, saying it would “profoundly [alter] the status quo that has existed between the United States and the States in the context of immigration for almost 150 years”.
‘Significant and immediate adverse effects’ on US-Mexico relations
The law stood to have “significant and immediate adverse effects” on US-Mexico relations and “create chaos” in the enforcement of federal immigration laws in Texas, the Justice Department said.
The Justice Department’s request followed a federal court ruling in which US District Judge David Ezra also blocked the law from being enacted.
In that 114-page ruling, Mr Ezra argued that SB4 was in conflict with federal immigration law and violated the US Constitution.
Permitting a Texas state law to supersede federal law due to an “invasion” – as Republicans have described illegal border crossings – would “amount to nullification of federal law and authority – a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War,” Mr Ezra wrote.
Arrests for illegal crossings along the southern border hit record highs in December but fell by half in January, a shift attributed to seasonal declines and heightened enforcement.
Some Texas officials have also sounded a cautious note about the new law.
“A lot of the local police chiefs here, we don’t believe it will survive a constitutional challenge ... We have no training whatsoever to determine whether an individual is here in this country legally,” said Sheriff Eddie Guerra of Hidalgo County.
He serves as president of the Southwestern Border Sheriffs’ Coalition representing 31 border counties from Texas to California.
Additional reporting by agencies