A 2023 Texas law that lets state police arrest people suspected of entering the country illegally can go into effect after a federal appeals court on Friday lifted a lower court ruling that had stopped it for years.
The Fifth U.S. Circuit Court of Appeals lifted the temporary injunction without weighing in on the underlying legal questions because the plaintiffs lacked standing to sue, according to the court’s order. The Legislature passed the law, known as Senate Bill 4, in response to record illegal border crossings that the state said amounted to an invasion, and that have since subsided.
Immigration law has historically been enforced solely by the federal government. Texas lawmakers sought to challenge that precedent with the law, which quickly drew constitutional challenges from immigrants’ and civil rights groups who argued the policing of immigration is under the federal government’s purview alone.
On Friday, the appeals court ruled, in a 10-7 decision, that plaintiffs Las Americas Immigrant Advocacy Center, American Gateways and El Paso County could not pursue a lawsuit.
“These Plaintiffs voluntarily incurred costs to advocate for clients. Under recent Supreme Court precedent, that falls far short of conferring standing. We vacate the preliminary injunction to the contrary,” the 5th Circuit’s order states.
Attorney General Ken Paxton celebrated the ruling on social media.
“Texas’s right to arrest illegals, protect our citizens, and enforce immigration law is fundamental,” Paxton said. “This is a major win for public safety and law and order.”
SB 4, passed during a special legislative session almost three years ago, creates a state misdemeanor for illegally crossing the border into Texas and lets authorities arrest people suspected of having violated it. The law also requires state magistrate judges to order people arrested for illegal entry to leave the country for Mexico in lieu of prosecution or if they are convicted.
The Biden administration challenged the law, arguing it was unconstitutional, but the Trump administration dropped the Department of Justice’s participation in the lawsuit.
Texas officials have defended the law, in and out of the courtroom, by saying the state has a right to defend itself against the illegal migration that GOP leaders say amounted to an invasion. Courts in recent decades have largely rejected the argument, and immigration rights advocates raised worries that the rhetoric could incite violence against immigrants.
The appeals court did not touch the invasion argument, ruling on the plaintiffs’ standing while stressing the decision was made “without addressing the merits” of the case. However, Judge James Ho in a concurring opinion argued that Texas had a right to defend itself, citing a book that posits Mexico and other countries have weaponized migrants against the United States.
“If our adversaries are going to weaponize mass migration to harm America as well as other countries, our elected officials are entitled to respond accordingly,” he wrote. “And in any event, these are political matters for which elected officials are held accountable by voters, not judges.”
It was not clear if SB 4 would go into effect immediately.
Nicolas Palazzo, director of legal services at Las Americas Immigrant Advocacy Center, said the 5th Circuit “took the easy way out” by declining to rule on the merits.
“By avoiding the core question of S.B. 4’s unlawfulness, it left the road wide open for S.B. 4 to continue its reign of fear and targeted profiling against migrants and their families, undermining safety and security in El Paso,” Palazzo said in a statement. “We remain committed, however, to continue to challenge S.B. 4 and its abuse of power.”
