Texas immigration law allowed to stand, for now
A divided court returns case for appeals ruling
WASHINGTON — The Supreme Court temporarily sided with Texas on Tuesday in its increasingly bitter fight with the Biden administration over immigration policy, allowing an expansive state law to go into effect that makes it a crime for migrants to enter Texas without authorization.
As is typical when the court acts on emergency applications, its order gave no reasons. But Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, filed a concurring opinion that seemed to express the majority’s bottom line.
They were returning the case to an appeals court for a prompt ruling on whether the law should be paused while an appeal moves forward, Barrett wrote. “If a decision does not issue soon,” she wrote, “the applicants may return to this court.”
For now, though, Texas law enforcement officials will be allowed to arrest people suspected of crossing the border illegally. How long that remains true is now a question for the appeals court.
The three liberal members of the court — Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor — dissented. “Today, the court invites further chaos and crisis in immigration enforcement,” Sotomayor wrote. “Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens.”
Sotomayor, joined by Jackson, said the majority had rewarded the US Court of Appeals for the Fifth Circuit for using an unseemly procedural gambit. The appeals court had entered an “administrative stay” of a trial judge’s ruling blocking the law.
Such administrative stays are meant to give courts time to consider whether to enter actual stays, and they are typically in place for brief periods. But the Fifth Circuit, Sotomayor wrote, “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.”
She wrote that “the Fifth Circuit abused its discretion, and this court makes the same mistake by permitting a temporary administrative stay.”
The two justices’ dissent spanned 10 caustic pages. Kagan issued a shorter and milder dissent, though she agreed that the majority should have not have been swayed by the appeals court’s procedural choices.
The court’s order addressed just one aspect of the clashes between the White House and Governor Greg Abbott of Texas, who has embarked on a multibilliondollar campaign to deter migrants, including by installing razor wire along the banks of the Rio Grande and a barrier of buoys in the river.
The surge in migrants entering the United States has intensified a fraught battle over immigration policy, underscoring deep divisions between and sometimes within political parties. It has led to the impeachment by House Republicans of the homeland security secretary and the failure of a bipartisan Senate deal to increase border security.
The law in Texas empowers state courts to order the deportation of migrants who enter the state without authorization. The administration, civil rights groups, and El Paso County challenged the law, saying it interfered with the federal government’s power to set immigration policy and to conduct foreign affairs.
The Associated Press reported that Mexico’s government said Tuesday it would not accept the return of migrants that Texas orders to leave the United States.
In 2012, in Arizona v. United States, the Supreme Court endorsed broad federal power in those areas by a 5-3 vote.
The court’s composition has changed since then, and officials in Texas are hopeful that the current justices will alter the balance of power between the federal government and the states in the realm of immigration.
Judge David A. Ezra, of the US District Court in Austin, last month entered a preliminary injunction blocking the Texas law, saying the plaintiffs were likely to win on several grounds. “Over a century of Supreme Court cases,” he added, recognized that the Constitution gave the federal government the dominant role in addressing immigration.