A controversial Texas law that allows state officials to arrest and detain people they suspect of entering the country illegally will remain blocked while legal challenges to it play out, a federal appeals court said Tuesday.
In a 2-1 vote, the court said the law, known as SB 4, will continue to be blocked while the court considers the larger question of whether it violates the US Constitution. Immigration enforcement is generally a responsibility of the federal government.
The court’s decision to not allow enforcement of the law caps off a messy few days in which SB 4 was caught in legal limbo after the Supreme Court allowed it to go into effect for a short period, only for the appeals court panel to put it back on hold hours later.
In the majority opinion penned by Chief Judge Priscilla Richman, the 5th US Circuit Court of Appeals said that it’s likely that the law runs afoul of the Constitution, but said a “lack of funding coupled with the lack of political will” have left a “gaping void” in the area of immigration that “Texas, nobly and admirably some would say, seeks to fill.”
“But it is unlikely that Texas can step into the shoes of the national sovereign under our Constitution and laws,” she wrote, adding later: “The Texas removal provisions bestow powers upon itself that are likely reserved to the United States.”
Richman was joined by Circuit Judge Irma Carrillo Ramirez, who was appointed by President Joe Biden.
Circuit Judge Andrew Oldham, who was appointed to the bench by former President Donald Trump, wrote in a lengthy dissent that he would have let Texas enforce the law. He said that his colleagues’ “readiness to invalidate” the law is “exceedingly troubling.”
“The State is forever helpless: Texas can do nothing because Congress apparently did everything, yet federal non-enforcement means Congress’s everything is nothing,” Oldham wrote. “And second, while the dispute before us is entirely hypothetical, the consequences of today’s decision will be very real.”
Signed into law?by Republican Gov. Greg Abbott in December, SB 4?makes entering Texas illegally a state crime and allows state judges to order immigrants to be deported. US District Judge David Alan Ezra?had blocked the law in late February before it went into effect, holding that the measure “could open the door to each state passing its own version of immigration laws.”
“SB 4 directly challenges the federal government’s long-held power to control immigration, naturalization, and removal,” Ezra wrote in the preliminary injunction. “Applied to the field of immigration, the federal government has both a dominant interest and a pervasive regulatory framework that preclude state regulation in the area.”
Texas quickly appealed that decision. The appeals court will hear arguments on April 3 over whether to uphold the injunction. Doing so would be a devastating blow to the law.
Texas can appeal Tuesday’s decision to the Supreme Court or ask the full 5th Circuit to review its request to enforce the law for now, but both options are unlikely given the proximity to next week’s hearing.
SB 4’s challengers include the Biden administration and two immigrant advocacy groups, as well as El Paso County.
This story has been updated with additional details.