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Texas tells court that state immigration law maybe went ‘too far’

A 5th Circuit panel heard oral arguments about whether to block the law

Hundreds of migrants camp Tuesday near the Rio Grande on the border between Mexico and the United States as the Texas National Guard reinforces security with barbed wire and chain-link fencing.
Hundreds of migrants camp Tuesday near the Rio Grande on the border between Mexico and the United States as the Texas National Guard reinforces security with barbed wire and chain-link fencing. (David Peinado/Anadolu via Getty Images)

A Texas state attorney told a federal appeals court that the state may have gone “too far” in passing a law that allows state officials to effectively deport immigrants, part of oral arguments Wednesday in the federal government’s push to block the law.

The state has asked the U.S. Court of Appeals for the 5th Circuit to reverse a lower court order that found the entire law, known as S.B.4, likely violated the Constitution in a lawsuit filed by the Biden administration and civil rights groups. Last month, a three-judge panel from the 5th Circuit ruled 2-1 to keep the state law on hold while the appeal proceeds.

Aaron Nielson, the Texas lawyer arguing for the state Wednesday, told the same three-judge panel that “maybe Texas went too far” into federal authority over immigration in passing the law, but said the lower court went too far by blocking the entire law before it could go into effect.

Texas has faced a massive border crisis, Nielson said, and has stepped up its efforts in the absence of congressional action to provide enough resources.

“Here, Texas has come forward with additional resources, saying, ‘Let us protect the border,’” Nielson said.

Chief Judge Priscilla Richman pointed out that by suing to stop the law, the federal government has effectively turned down the help.

“What did they say? They’re not saying yes, they’re saying no,” Richman said. “If it were just money, it seems like they’d welcome your help, but they’re not.”

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

Nielson challenged that during Wednesday’s oral arguments, saying the lower court mischaracterized the scope of the removal provision. The law mandates that state officials hand immigrants over to federal authorities at ports of entry, thus allowing legal rights like asylum claims to play out.

“It is portrayed as Texas is ourselves just like flying people off to some other place, and that’s not accurate,” Nielson said.

Justice Department attorney Daniel Tenny urged the judges to keep the law on hold, saying that nothing had changed since a district judge found the law likely violated the Constitution for interfering with federal authority over immigration.

Tenny said the law could interfere with individual immigration cases, foreign affairs and even raise the concerns of Americans being treated similarly abroad.

The three-judge panel could issue a ruling at any point on whether the district court judge was correct to block implementation of the law.

The procedure-heavy dispute has already gone to the Supreme Court, which declined to intervene in a 6-3 ruling that allowed the law to go into effect for a few hours. The 5th Circuit panel then put the law on hold as the rest of the appeal plays out.

The case is one of several court battles between Texas and the federal government over immigration policy, including Texas’ use of concertina wire at the Eagle Pass crossing.

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