The Texas immigration law that would empower police to arrest people suspected of entering the United States illegally is again on hold while a different panel of the U.S. Court of Appeals for the Fifth Circuit decides how to proceed.
The appeals court's back-and-forth decisions, or non-decisions, have confused the Biden administration and the Supreme Court, alarmed immigrant rights advocates and sparked outrage from the Mexican government.
It is unclear if or when the Texas law will take effect. And the outcome will remain uncertain until the case reaches the Supreme Court for a second time.
At stake is the far-reaching question of whether Texas and other red states can adopt and enforce their own immigration laws. Texas Governor Greg Abbott has defended the new, more aggressive approach to immigration enforcement, insisting that the state must take action because of what he calls lax federal enforcement by the Democratic administration.
But doing so would require the Supreme Court to reverse course on decades of rulings that say the federal government, not the state, has the power to enforce the “entry and removal” of people at the border.
The dispute has already divided judges on the conservative-dominated Fifth Circuit.
On February 29, a federal judge in Texas issued an injunction blocking the new state law from taking effect, claiming it conflicted with federal law. When the state appealed, a three-judge motions panel of the Fifth Circuit overturned the judge's ruling and issued what it described as a “temporary administrative stay” that lasted a week.
That gave the Biden administration time to ask the Supreme Court to intervene. But there was no clear ruling before the court.
On Tuesday, the Supreme Court, in a 6-3 vote, rejected the Biden administration's request to keep the law on hold.
The court said it “denied” requests to block the Texas law, but did not say why.
However, Justices Amy Coney Barrett and Brett M. Kavanaugh explained their votes by saying that the Fifth Circuit had not yet ruled on the constitutionality of the Texas law and were unwilling to jump ahead to decide such an important issue.
This case is “in a very unusual procedural position,” Barrett wrote, because the first panel of judges did not issue a clear ruling. Instead, it issued “a temporary administrative suspension” whose term had expired. He said the high court does not normally review these types of temporary orders and that “I wouldn't get into that business.”
Four other conservative justices did not explain their votes, while the court's three liberals voted in favor of the Biden administration's request to block the Texas law for now.
Less than nine hours later, a three-judge panel of the New Orleans appeals court said it would hold a hearing Wednesday morning to consider whether to indefinitely suspend the Texas law while its constitutionality is decided.
This second panel, led by Chief Judge Priscilla Richman, was scheduled to hear arguments on April 3 on the constitutionality of the Texas law. By a 2-1 vote, he “dissolved” the panel of motions judges' earlier order that would have allowed the state law to take effect immediately.
In addition to Richman, appointed by President George W. Bush, the appeals court panel includes Judges Andrew Oldham, a Trump appointee who worked as a lawyer for Governor Abbott, and Judge Irma Ramirez, a Biden appointee. Richman and Ramirez voted to keep the law temporarily on hold, while Oldham dissented.
Although the justices did not say how they will rule, Richman was notably skeptical of the Texas law. He said it resembled the Arizona immigration law that was blocked by the Supreme Court in 2012.
Stephen Vladeck, a law professor at the University of Texas, said the Texas law known as Senate Bill 4 “is now on hold and will likely remain on hold at least until oral argument on the merits on Sept. 3. April”. And regardless of how the appeals court rules, “the Supreme Court will eventually have to resolve this case,” he said.
This may take many months, or even a year, if the high court agrees to hear arguments on the issue.
But this week's procedural collapse has highlighted the different tasks before a regional appeals court.
On the one hand, judges must hear appeals and issue rulings on disputed areas of law. The April 3 argument in the Texas case is a case in point.
But separately, judges must also decide whether a new and contested law or regulation can take effect immediately or remain on hold while appeals are pending. A rotating three-judge panel hears those motions seeking temporary relief.
Increasingly, however, those temporary appeals are going directly to the Supreme Court, forcing justices to quickly decide whether to allow a disputed measure to take effect.
Judges have been cautious about acting on these disputes on a fast track basis. Judge Barrett in particular has opposed that process. He said the court should hold back and wait for a final ruling from the appeals court.
This, in turn, requires the appeals court panel to decide, and the Fifth Circuit has not yet done so.
In the hours between Tuesday's contradictory court decisions, the Mexican government said it rejected any state or local attempt to “exercise immigration control and arrest and return nationals or foreigners to Mexican territory.”
A provision of SB 4 would authorize Texas judges to order the deportation of immigrants who have entered the state illegally.
“Mexico will not accept, under any circumstances, repatriations by the State of Texas,” said the Mexican Foreign Ministry.
On Wednesday, Mexican President Andrés Manuel López Obrador echoed that stance and questioned how that part of the Texas law would be enforced.
López Obrador described the measure backed by the Republican Party as the product of “anti-immigrant and anti-Mexican” sentiment and attacked the Texas governor without naming him.
The president compared the situation to the idea of the Mexican state of Tamaulipas, across from the Rio Grande Valley region of Texas, targeting Texans.
“It is as if the governor of Tamaulipas applied a law against Texans who were visiting Mexico or passing through Tamaulipas,” López Obrador said.
But he did not predict any deterioration in relations with Washington and noted that the Biden administration is defying the Texas law.
As legal disputes in the United States unfold during a presidential campaign focused largely on immigration, some in Mexico see the Texas law and its broad Republican support as a harbinger of how tensions between the United States and Mexico could rise if Donald Trump wins. a second term.
“This is an indication of what will happen in November if Trump and the Republican Party win the elections,” Arturo Sarukhan, former Mexican ambassador to Washington, wrote on X, formerly Twitter.
Adam Isacson, an analyst at the Washington Office on Latin America, a research and advocacy group, highlighted the common emphasis by Mexican and U.S. authorities on federal jurisdiction in immigration policy.
“It underscores that the Biden and López Obrador administrations have a common adversary in Texas and in Trump world,” Isacson wrote in an email. “For the Biden administration, it could mean a little more influence. They can tell their Mexican counterparts, 'We are the only thing standing between you and the people who would implement policies like SB 4, so we need you to cooperate on our priorities.'”
Savage reported from Washington and McDonnell from Mexico City.
