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Supreme Court lets Texas enforce state law allowing deportation

Ruling on procedural grounds means the immigration issue could quickly return to the justices

In an aerial view, a Texas National Guard soldier stands atop a barrier of shipping containers and razor wire while guarding the U.S.-Mexico border in Eagle Pass, Texas, on Sunday.
In an aerial view, a Texas National Guard soldier stands atop a barrier of shipping containers and razor wire while guarding the U.S.-Mexico border in Eagle Pass, Texas, on Sunday. (John Moore/Getty Images)

A sharply divided Supreme Court on Tuesday temporarily allowed Texas to enforce a state law that allows officials to effectively deport undocumented immigrants, a move the Biden administration argued would upend more than a century of law that gave the federal government control of immigration enforcement.

The justices, in a 6-3 decision, turned aside the federal government’s request this month to alter a ruling from the U.S. Court of Appeals for the 5th Circuit that allows the state’s immigrant removal law, S.B. 4, to go into effect while a lawsuit plays out in the courts.

The case is part of a broader legal and political struggle over immigration between Texas, national Republicans and the Biden administration, including a border standoff in which Texas officials denied Border Patrol access to the Texas border. But legal experts said the S.B. 4 issue could be back before the court in a matter of weeks.

The law makes it a state crime to cross from Mexico into Texas, and Texas state courts could order the removal of immigrants even if they have pending asylum claims, the Biden administration said.

A trial court judge had found the Texas law likely violated the Constitution by supplanting the federal government’s authority over immigration enforcement. But Texas appealed to the 5th Circuit, which issued an “administrative” stay of the lower court and would allow the law to go into effect.

White House Press Secretary Karine Jean-Pierre issued a statement Tuesday that the Biden administration “fundamentally disagrees” with the Supreme Court ruling in the case. The law would “not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border,” Jean-Pierre said.

Justice Amy Coney Barrett, in a concurring opinion joined by Justice Brett M. Kavanaugh, wrote that the case is in a “very unusual procedural posture” because the Supreme Court does not normally review “administrative” stays issued by lower courts. The 5th Circuit is currently deciding whether to issue a “stay pending appeal” that is more typically reviewed by the high court.

Barrett also encouraged the 5th Circuit to rule on whether to pause the law pending appeal “promptly” or the Biden administration may be able to seek Supreme Court review again.

“But for the brief period of uncertainty — i.e., the time it takes the court to deliberate — the Fifth Circuit apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than those of erroneously lifting the injunction,” Barrett said.

Justice Sonia Sotomayor, in a dissent joined by Justice Ketanji Brown Jackson, wrote that the majority decision invites “further chaos and crisis in immigration enforcement” and gave a “green light” to a law that a lower court has already found to be likely unconstitutional.

“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” Sotomayor wrote.

Justice Elena Kagan, in a separate dissenting opinion, criticized the majority for placing too much emphasis on the procedure of the 5th Circuit rather than the effect, which would allow state law to affect federal immigration policy.

Calling a stay pending appeal an administrative stay “should not spell the difference between respecting and revoking long-settled immigration law,” Kagan wrote.

And Kagan pointed out that “the entry and removal of noncitizens particularly, are matters long thought the special province of the Federal Government.”

Aaron Reichlin-Melnick, policy director for the American Immigration Council, said on X, the site formerly known as Twitter, that the issue would likely head back to the Supreme Court either way once the 5th Circuit rules again on whether to let the law go into effect.

“Beginning this moment, Texas law enforcement officers can arrest any person in the state they believe crossed illegally. And judges can now order people to walk back into Mexico at threat of 20 years in prison if they don’t—even if the person has federal permission to be here,” Reichlin-Melnick said.

Texas Attorney General Ken Paxton called Tuesday’s ruling a “HUGE WIN” in a statement on X that the law would now take effect.

“As always, it’s my honor to defend Texas and its sovereignty, and to lead us to victory in court,” Paxton said.

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