The Supreme Court on Tuesday allowed Texas to smash through more than a century of precedent around federal supremacy over immigration law, with some members of the Court’s conservative majority citing procedural concerns to do so.
Texas will now be the first state in more than one hundred years to conduct its own immigration enforcement, a win for state Republicans who set their sights in recent years on annexing the authority to detain and deport noncitizens away from the federal government.
The Texas law, SB 4, creates a state crime for illegal border crossing, empowers state judges to issue deportation orders, and gives state law enforcement the authority to carry those orders out. The law — and the Supreme Court’s Tuesday order — contravenes the 2012 Arizona v. U.S. Supreme Court ruling, which upheld federal supremacy over immigration law.
It sets up a mind-boggling conflict between state and federal authority. A person with federal permission to be in the United States could now face 20 years in Texas prison if they ignore an order, issued by a Texas state judge under the law, to leave the country.
The Supreme Court’s decision to allow the law to go into effect, however, may be ephemeral. It dealt with whether or not to put the law on hold, sidestepping the merits of the law, which the Court will almost certainly be asked to consider.
A Texas federal judge had paused enforcement of the law, which was passed last year. Texas appealed that ruling to the right-wing 5th Circuit Court of Appeals, which said, via an administrative order, that the law could begin to take effect. It has yet to respond to an emergency stay motion from the Biden administration.
Justices Amy Coney Barrett and Brett Kavanaugh wrote a five-page statement concurring with the order, saying that, for procedural reasons, it was not the right time for the Supreme Court to weigh in. Their logic effectively shunted the Court’s authority to decide the case off to what it described as the 5th Circuit’s “exercise of its docket management authority.”
“It is surprising that both the parties and the panel contemplated from the start that this Court might review an administrative stay,” Barrett and Kavanaugh remarked.
The judges left open the possibility that they may stay the Texas law once a stay appeal that they deem procedurally appropriate appears before them. It also left open the possibility that they may strike down Texas’ law once they are asked to consider it.
Nonetheless, the decision to allow Texas’ state deportation law to take effect signals a fundamental openness to SB 4’s central proposition: that the federal government does not have supremacy over the states in border enforcement.
The ruling opens the door to a morass of potential issues. Per federal law, those seeking asylum have the right to protection — including to stay in the United States — until a determination is made as to whether or not they qualify. The Supreme Court’s decision could then pit state and federal officials with competing and undefined obligations against each other.
In a dissenting opinion relating to the order, Justices Sonia Sotomayor and Ketanji Brown Jackson said that the move “invites further chaos and crisis.”
“The Court confronts a state immigration law that will transform the balance of power at the border and have life-altering consequences for noncitizens in Texas,” they wrote, before calling the 5th Circuit’s order “maximally disruptive to foreign relations, national security, the federal-state balance of power, and the lives of noncitizens.”
Justice Elena Kagan also dissented, writing that, contra Barrett and Kavanaugh, she did not believe the variety of stay “should matter.”
Texas officials have spent more than a year saying that they intend to arrogate a portion of federal border authority to themselves.
The effort emerged from Gov. Greg Abbott’s (R) Operation Lone Star, in which he’s taken hundreds of millions of federal dollars and trained it on the creation of a state border enforcement mechanism. Abbott has ordered a state border wall built, deployed the Texas National Guard along the Rio Grande river, and tried to wrest control over U.S.-Mexico relations in the process.
But last year, Texas Attorney General Ken Paxton (R) said that the state wanted to go further: it planned to “test” Arizona v. U.S., the 2012 5-3 ruling affirming federal supremacy over the border, by flouting it and creating its own state deportation mechanism.
The Supreme Court order has already spurred fist-pumping among Texas Republicans. Gov. Greg Abbott (R-TX) gave a somewhat hedged assessment and called it a “positive development” while noting that court hearings remained ahead. Paxton dubbed it a “HUGE WIN,” saying it was “my honor” to “defend Texas and its sovereignty.”
The irony here is that the high court’s ruling comes after both Paxton and Abbott have publicly pressured the court with their border theatrics.
In January, after the court voided a lower court injunction barring the Biden administration from removing razor wire along a portion of the border, Abbott used the ruling to suggest that he would flout the Supreme Court’s authority. He ordered the installation of more razor wire along the border, and issued a statement asserting that the federal government had broken its “compact” with the states.
There was nothing in the Supreme Court decision for Texas to violate, but the message from Texas was clear: it would at least act like it would defy the Supreme Court, even if it wasn’t possible to do so.
