Migrants who enter illegally can be arrested, Supreme Court tells Texas

The Supreme Court on Tuesday turned down a plea from the Biden administration and cleared the way for Texas to enforce a new state law that authorizes its police to arrest migrants who illegally across the Rio Grande.

The decision came on a 6-3 vote, but several justices stressed the preliminary nature of the dispute.

Justices Sonia Sotomayor and Ketanji Brown Jackson issued a strong dissent. “Today, the Court invites further chaos and crisis in immigration enforcement,” they said. “Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico. 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,” they said.

Justice Elena Kagan dissented separately.

At issue is whether Texas and other red states may strictly enforce laws against coming into the country illegally. Those state leaders say they are acting because of what they view as lax enforcement by the Biden administration.

The Justice Department said that if Texas were allowed to enforce its own hard-line immigration policy, it would “create chaos” along the border and “disrupt” relations with Mexico. Department lawyers urged the justices to “maintain the status quo” while the lower courts considered challenges to the new state law.

But Texas’ lawyers pointed to the increase in the numbers of migrants crossing the Rio Grande and said smugglers have taken advantage of lax enforcement.

They cited President Joe Biden’s comment during his State of the Union speech: “People pay these smugglers $8,000 to get across the border,” he said, because migrants know “if they get by and let into the country, it’s six to eight years before they have a hearing.” Biden was making a plea for a bipartisan border bill that he said would shorten the delay for asylum hearings and thus reduce an incentive for illegal crossings.

Texas Gov. Greg Abbott had championed the new state law and argued that Texas had the power as a “sovereign” state to protect itself against what he’s termed an “invasion.” He cited the late Justice Antonin Scalia, who laid out a similar view in a dissent in 2012, insisting it was a myth that the Constitution gave the federal government exclusive power over immigration.

On Feb. 29, a federal judge in Austin had blocked the law from going into effect on the grounds that it conflicted with federal enforcement. Four days later, the U.S. Court of Appeals for the 5th Circuit lifted the judge’s order by a 2-1 vote and with no explanation.

The Supreme Court refused to lift that order, which allows the law to take effect, at least temporarily.