The verdict on whether SB4, the Texas law allowing state authorities to arrest and deport migrants, can be implemented, is a step closer as the federal appeals court dealing with the case held a new round of arguments.
The 5th U.S. Circuit Court of Appeals in New Orleans questioned both parties about whether it should continue blocking the law, following an appeal over the decision that stopped it from going into effect.
The Texas Tribune reported that state Solicitor General Aaron Lloyd Nielson told the panel that the law was crafted in a way that "goes up to the line of Supreme Court precedent," but conceded it may have gone too far.
"To be fair, maybe Texas went too far," Nielson told the judges Wednesday, according to the outlet. "That's the question this court is going to have to decide, but that's the context of which we are here."
At the center of the conundrum is whether the state can enforce immigration law, something the Justice Department says is not legal. After a majority of judges involved in the case showed skepticism about Texas' arguments, Nielsen said that the state "doesn't deport anybody" under the law. In turn, he added, authorities take unlawful immigrants to a port of entry, which is controlled by federal authorities.
"Texas takes them to a port of entry and the United States then decides what to do," Nielsen said. "That's critical about this ... it's portrayed as Texas is ourself just like flying people off to some other place and that's not accurate."
Daniel Bentele Hahs Tenny, the lawyer representing the Biden administration, sought to expose flaws in Nielsen's arguments pointing at a part of the law requiring detained immigrants be returned to the country from which they entered the U.S. "They now say, I guess, that you don't actually have to do that, that maybe you just go to the port of entry and that's good enough," Tenny said.
For now, the panel has continued to block the implementation of the law following a divided, 2-1 ruling from last week. Back then, Judge Priscilla Richman wrote for the majority and said that "for nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens—is exclusively a federal power."
Richman also cited part of a Supreme Court ruling that blocked a similar, restrictive law attempted by Arizona in 2012, popularly known as "show me your papers."
She added that despite the state's criticism of the federal government's "actions and inactions" on immigration, it's up to the administration to "decide whether, and if so, how to pursue noncitizens illegally present in the United States."
Richman's opinion was supported by Judge Irma Carrillo Ramirez, while Judge Andrew Oldham voted in favor of the law going into effect. Oldman and Richman are Republican appointees, Ramirez being a Democratic one.
SB4 was briefly in effect two weeks ago after the Supreme Court lifted a stay allowing it to go ahead while the broader legal battle continued. Liberal justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor had disagreed about letting the law go into effect. However, the appeals court blocked it shortly after and began with the hearings. According to NBC News, Texas could potentially ask now the Supreme Court to allow the law to go into effect.
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