April 21, 2024
United States v. Texas, 601 U.S. ___, No. 23A814 (Mar. 19, 2024) (Alito, J., denying application to vacate stay)
Response by Cori Alonso-Yoder & Tania N. Valdez
Geo. Wash. L. Rev. On the Docket (Oct. Term 2023)
Slip Opinion | SCOTUSblog
The Court Sidesteps Immigration Federalism Feud, For Now
On March 19, 2024, the Supreme Court had an opportunity to weigh in on the ongoing dispute between the state of Texas and the Biden Administration regarding Texas’s new law criminalizing immigration violations.1 The controversial law, known as SB4, was found likely to be unconstitutional and enjoined by a lower court.2 To skip a few steps in the convoluted procedural history, the Supreme Court’s March 19 ruling had the effect of empowering the state of Texas to enforce the controversial law, even while managing to sidestep any of the substantive legal or political issues. The Supreme Court’s ruling also spurred a dizzying series of actions by the Fifth Circuit Court of Appeals. Within hours of the ruling, the Fifth Circuit scheduled oral argument on the case at 10:00 a.m. CT the next morning.3 Then, after 10:00 p.m. that same night,4 the Fifth Circuit dissolved its own administrative stay on the lower court, reviving the injunction against SB4.5 If you’re confused, you’re probably paying attention. Let’s break this down.
First: the state law at issue. Texas lawmakers enacted SB4 in the 2023 state legislative term to establish state criminal liability for violations of immigration law. The law is essentially an extension of Governor Greg Abbott’s “Operation Lonestar,” which is an aggressive law enforcement effort to criminally prosecute migrants who have entered the United States without authorization. Because immigration control, including criminal penalties for crossing the border unlawfully, is solidly within the purview of the federal government,6 Operation Lonestar circumvents federal authority by prosecuting migrants under existing criminal penalties in Texas state law, such as criminal trespassing. SB4 takes Operation Lonestar a step further, asserting that states can undertake to control immigration under certain circumstances: a foreign “invasion.”
Governor Abbott has made his litigation posture clear from the outset. Amid several lawsuits challenging Abbott’s use of border barriers and now on the legal challenges to SB4, Abbott’s case theory is that asylum-seekers and other migrants constitute an “invasion” and that Texas is therefore constitutionally empowered to protect itself by controlling immigration.7 This theory builds on the dissent in Arizona v. United States,8 a 2012 case in which the Supreme Court reaffirmed centuries-old precedent holding that states do not have the authority to regulate immigration law.9 In Arizona, the Court struck down provisions of Arizona’s SB1070—a law comparable to SB4—as unconstitutional usurping of the federal government’s sole authority to regulate and enforce immigration law.10 In that case, Justice Scalia concurred and dissented in part, noting that states’ sovereignty may justify state action without congressional consent when “actually invaded.”11 In its defense of SB4, Texas has used this reasoning to justify legislative action to respond to the crisis at the border.12 Legislators seemed to anticipate the likelihood of litigation, including a severability clause indicating that any provisions found invalid by a court were to be severed from the legislation.13
Second: back to the Supreme Court’s March 19 ruling. Notably, the Court did not respond to the substance of the federalism argument whatsoever in its order denying the application to vacate the Fifth Circuit’s stay of the injunction on SB4. Justice Samuel Alito, who is charged with handling emergency motions out of the Fifth Circuit,14 simply denied the application to vacate stay without explanation.15 Fortunately for those of us who care about why the Supreme Court would let a law go into effect that so clearly violates constitutional and statutory law (not to mention Supreme Court precedent), Justice Amy Coney Barrett wrote a concurrence, in which Justice Brett Kavanaugh joined. Justice Barrett focused on the procedural irregularity of the Fifth Circuit’s use of an administrative stay, instead of the standard stay pending appeal.16 In so doing, her reasoning sidestepped the federalism issue while also dodging the most basic explanation of what SB4 would do. Rather, Justice Barrett wrote, “Before this Court intervenes on the emergency docket, the Fifth Circuit should be the first mover.”17 However, she concluded that if the Fifth Circuit did not promptly decide the motion for a stay pending appeal, “the applicants may return to this Court.”18 Despite the absence of a direct order, the Fifth Circuit seemed to have received the message, scheduling oral argument on the motion for stay pending appeal for 10:00 a.m. the very next morning.19
The only part of the Supreme Court’s ruling to acknowledge the potential human cost of SB4—and the Supreme Court’s willingness to let it go into effect—was the dissent written by Justice Sonia Sotomayor. Justice Ketanji Brown Jackson joined. Justice Sotomayor acknowledged the “further chaos and crisis in immigration enforcement” that SB4 will bring, if allowed to go into effect.20 Justice Sotomayor listed six concerns, revolving around foreign policy, federalism, concerns that local entities will be overloaded, the United States’ international humanitarian obligations, and the human impact of prosecutions and federal prison sentences—sentences up to 20 years, specifically—on migrants.21
Among the most concerning aspects of SB4 is that it purports to allow the state of Texas to not only criminally prosecute, but also to deport noncitizens who are present unlawfully: “A court may not abate the prosecution of [the relevant S. B. 4 offense] on the basis that a federal determination regarding the immigration status of the defendant is pending or will be initiated.”22 The decision to either deport or permit a noncitizen to stay in the United States has long been recognized as the province of the federal government, given the sovereignty and foreign policy implications.23 Critically, many of the migrants coming to the United States are fleeing persecution and torture. Under provisions of the Immigration and Nationality Act (“INA”),24 which are based on our treaty obligations under international law, people seeking protection have the right to apply for asylum regardless of how they entered the country.25 Our laws further provide that migrants cannot be returned to their countries of origin when it is more likely than not they will face persecution and/or torture.26
If the courts permit SB4 to go into effect, the law allows Texas to arrest, prosecute, and deport people—even those who are in the process of applying for asylum. In terms of the human cost of SB4, it cannot get more extreme than interfering in the asylum process and allowing an individual state to deport people who may be tortured or killed if returned to their countries of origin.
Proponents of SB4 may respond that the law allows the return of people to Mexico, rather than their countries of origin. However, migrants subject to SB4 include Mexican citizens who fear persecution there. Additionally, non-Mexican migrants waiting in Mexico to apply for asylum have been subjected to widespread rape, kidnappings, beatings, robbery, murder, and other violence at the hands of criminal organizations due to their vulnerable position.27 Thus, deportation to Mexico does not comport with U.S. or international law. In addition to perpetuating—if not creating—this avoidable humanitarian crisis, SB4 is subject to additional challenges. The government of Mexico issued a statement shortly following the Supreme Court’s ruling, indicating that it would refuse to cooperate with Texas law enforcement seeking to deport people to Mexico.28
Third: the next steps. As mentioned above, the Fifth Circuit promptly set oral argument on the stay against the district court’s injunction of SB4.29 On March 26, 2024, the Fifth Circuit finally explained its preliminary views on SB4. In a two-to-one en banc decision, the Fifth Circuit concluded that Texas was unlikely to prevail on the merits of its argument for the constitutionality of SB4 given the “considerable authority supporting that the core provisions of S. B. 4 are field, or alternatively, conflict preempted by federal law.”30 With regard to Governor Abbott’s theory about the situation at the border amounting to an “invasion,” the Fifth Circuit disagreed, concluding that, “Texas has not persuaded us that the State War Clause is likely to compel a contrary result.”31 The litigation continues in the Fifth Circuit on the merits of the challenge to SB4, but this ruling allowing the lower court’s injunction to remain in place presages a likely defeat of the controversial bill. In Fifth Circuit oral arguments on the constitutionality of the law, the attorney for the state of Texas seemed to recognize the weight of precedent against its position. On April 3, 2024, counsel for the State of Texas argued that SB4 goes “up to the edge” of what is constitutionally permitted but does not cross the line.32 The Fifth Circuit’s decision is anticipated to issue this spring.
While SB4 is on hold for now, the parties seem able to agree on one key point. As Governor Abbott observed in his response to the District Court injunction against SB4, “this case will ultimately be decided by the Supreme Court.”33 While the Supreme Court’s March 19 ruling did not reveal several Justices’ views on federalism when it comes to immigration control, the energetic advocacy on both sides of the litigation suggests that it won’t be long before the Justices are again in the position to have the final word on SB4.
Cori Alonso-Yoder is an Associate Professor of the Fundamentals of Lawyering at the George Washington University Law School. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Hill, Washington Post, and Law360, among others.
Tania N. Valdez is an Associate Professor of Law at the George Washington University Law School. Professor Valdez has represented numerous asylum-seekers and other migrants facing deportation. Her research focuses on systemic inadequacies of protections for migrants, particularly in the current era of aggressive immigration enforcement.
Recommended Citation
Cori Alonso-Yoder & Tania N. Valdez, United States v. Texas, Geo. Wash. L. Rev. On the Docket (April 21, 2024), https://gwlr.org/the-court-sidesteps-immigration-federalism-feud-for-now.
