The state of Texas has conceded that it may have gone “too far” in passing a law last year that made entering the state illegally a crime and allowing state judges to order undocumented people to be deported.
The admission that Texas’s SB4 may have gone beyond the limitations of state laws, which typically bow to federal law on immigration matters, came at a hearing on Wednesday before the fifth US circuit court of appeals.
The Texas solicitor general, Aaron Nielson, told the court that Texas lawmakers had sought to go “up to the line” in terms of authority on immigration allowed by the US supreme court.
“Now, to be fair, maybe Texas went too far,” Nielson conceded during a hearing before the court that paused SB4 from coming into effect last week.
When asked what the statute had accomplished, Nielsen said it was Texas’s attempt to enforce federal immigration law that the Biden administration was failing to apply.
By some estimates, more than 8 million undocumented people have crossed into the US during Biden’s term, settling in border states such as Texas as well as cities including New York in large numbers.
“Of course, we know that presidents come and go, and different administrations might very well enforce federal law differently,” Nielsen told the court, according to CNN, and said that the law might not be necessary under a different administration.
Nielsen also said that under Texas’s interpretation of immigration law, people subject to deportation would be turned over to federal immigration authorities at border ports and that federal officials would then determine whether they should be released into the US.
Daniel Tenny, an attorney for the Department of Justice, argued that the appeals court should uphold its decision blocking the law, which came after the US supreme court permitted its enforcement only hours earlier.
During that brief window in March, Dan Patrick, the lieutenant governor of Texas and co-author of SB4, saluted what he called a “historic” decision that gave Texas “the right to arrest, prosecute and return anyone who enters Texas illegally”.
The supreme court’s conservative majority did not offer a reasoning for allowing SB4 to go into effect, though in dissenting opinions the liberal justices Sonia Sotomayor and Ketanji Brown Jackson accused the rightwing justices of inviting “further chaos and crisis in immigration enforcement”.
Sotomayor said the Texas law “upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of non-citizens”.
The White House also strongly criticized the court for allowing what it called a “harmful and unconstitutional” law.
“We fundamentally disagree with the supreme court’s order allowing Texas’s harmful and unconstitutional law to go into effect,” said the White House press secretary, Karine Jean-Pierre. “SB4 will not only make communities in Texas less safe, it will also burden law enforcement and sow chaos and confusion at our southern border.”
With SB4 now effectively neutralized, Texas is pursuing other measures to deter people from crossing the border, including deploying national guard troops and installing concertina wire and a floating barrier along the Rio Grande.
