A federal appeals court appeared ready Wednesday to keep on hold a Texas law that would allow state officials to effectively deport immigrants, the day after a Supreme Court order allowed the law to briefly go into effect.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in a 2-1 order issued late Tuesday, once again prevented Texas from enforcing the law.
And the panel set oral arguments for Wednesday morning on whether to keep the immigrant removal law, S.B. 4, on hold as the Biden administration and civil rights groups challenged it in court.
The law makes it a state crime to cross from Mexico to Texas unlawfully and state courts could order the removal of immigrants even if they have pending asylum claims, the Biden administration said in court papers.
During those arguments, Chief Judge Priscilla Richman repeatedly pressed Texas’ attorney, Aaron Nielson, to explain how the law does not conflict with prior Supreme Court decisions that mandate the federal government speak with “one voice” on immigration issues.
“This is the first time it seems to me that a state has claimed that they have the right to remove illegal aliens. I mean, this is not something that, a power that, historically has been exercised by states, has it?” Richman said.
Nielsen argued that Texas has a right to defend itself and arrest people who break the law within its borders. He also argued that states have a right to pass laws that “mirror” and cooperate with federal officials.
“Texas has decided that we are at the epicenter of this crisis. We are on the front line. And we are going to do something about it,” Nielsen said.
Justice Department attorney Daniel Tenny told the 5th Circuit that the Supreme Court has previously held that states cannot intrude on immigration enforcement. He pointed to the court’s 2012 decision in U.S. v. Arizona that overturned parts of a state law that allowed local authorities to enforce federal immigration law.
Judge Andrew Oldham, a Trump appointee who dissented from Tuesday’s decision to grant the stay, pushed the Biden administration and ACLU plaintiffs challenging the law to justify blocking the law before enforcement. Oldham said that the plaintiffs would have to prove the Texas law would never be constitutional.
“We’re predicting all of this, and we have to take all of it is unlawful, and therefore the entire thing will never go into effect, so sayeth, the federal court,” Oldham said.
Tenny argued that immigration enforcement is a core federal power and states can only act within the spaces that Congress has carved out. The Supreme Court has already held that “the federal government has to have control over the immigration system,” Tenny said, and states cannot interfere with that.
Procedural mess
The 5th Circuit oral arguments were the result of a procedural back-and-forth rulings that are part of a broader legal and political struggle over immigration between Texas, national Republicans and the Biden administration.
A trial court judge had blocked implementation of the law last month after he found it likely violated the Constitution because it supplants federal government authority on immigration policy. Texas then appealed to the 5th Circuit, which issued an “administrative stay” of the lower court decision.
The Biden administration asked the Supreme Court to intervene rather than let the law go into effect, but the court declined to do so in a 6-3 decision Tuesday. Two justices in the majority wrote that they did not want to delve into how the 5th Circuit manages its cases but said the court should handle the issue “promptly.”
Hours later, the 5th Circuit again paused enforcement of the law and scheduled oral arguments. The panel has scheduled a full oral argument over the law for next month.
During the time the law was in effect Tuesday, the Mexican foreign ministry issued a statement that it “categorically rejects any measure that allows state or local authorities to exercise immigration control” and said it would not affect any deportations by state officials. The statement also said the Mexican government plans to participate in the litigation challenging the law.
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