Appeals court considers reviving Texas migrant law
EAGLE PASS, Texas — A panel of three federal appeals court judges heard arguments Wednesday in a bitter legal fight between Gov. Greg Abbott and the Biden administration over Texas’ new migrant arrest law, punctuating a dizzying series of legal developments over the previous 24 hours that left migrants and many law enforcement officials in Texas confused and uncertain.
The session had been hastily convened the day before by the 5th U.S. Circuit Court of Appeals, leaving lawyers scrambling to prepare for a hearing that could determine whether one of the nation’s most aggressive state efforts to enforce security on the U.S.-Mexico border should be allowed to become law.
Two judges spoke frequently during the hearing, and their comments suggested a split on the panel.
The chief judge of the court, Priscilla Richman, appeared skeptical of the Texas law, particularly its provision allowing state courts to order migrants back to Mexico. As she questioned Aaron Nielson, the Texas solicitor general, she read from a 2012 Supreme Court case out of Arizona that upheld the supremacy of the federal government in immigration matters.
“It seems to me that this statute washes that away,” Richman said of the Texas law.
The other judge who spoke, Andrew S. Oldham, a former general counsel to Abbott, peppered the U.S. Justice Department’s lawyer with questions and appeared likely to side with Texas. Oldham had dissented in a 5th Circuit ruling Tuesday night that effectively put the law back on hold, hours after the U.S. Supreme Court had allowed it to go into effect.
Judge Irma Carrillo Ramirez, who
was nominated by President Joe Biden and confirmed last year, did not appear to speak during the hearing, which was conducted by videoconference and streamed live to the public on audio.
The appeals court judges were considering a request by Texas to allow the law to take effect while its constitutionality is being challenged in court. A district court originally blocked the law in February.
The appeals court judges issued no ruling during Wednesday’s hearing.
In a wide-ranging speech in Austin, Texas, shortly after the hearing, Abbott, who has said he expects the Supreme Court to eventually decide the constitutionality of the law, suggested the statute had been crafted to challenge the high court’s precedent in the 2012 case, Arizona v. United States, which was decided 5-3.
“We found ways to try to craft that law to be consistent” with the dissent that Justice Antonin Scalia wrote in the Arizona case, Abbott said.
Scalia had suggested the Arizona measures did not conflict with federal law but simply added state penalties to help enforce existing federal restrictions.
The hearing followed a rapid series of back-and-forth court decisions Tuesday, including a procedural ruling by the Supreme Court that allowed the law to briefly go into effect for several hours. Then, on Tuesday night, the appeals court panel blocked the law again, ruling in a 2-1 decision.
The confusion continued into Wednesday and extended to state troopers, local police departments and elected sheriffs, some of them eager to implement the law, known as Senate Bill 4.
The law makes it a crime to cross into Texas from another country anywhere other than a legal port of entry, punishable by jail time, a deportation order from a state court judge or both. It would apply not just to migrants on the border, but also to people in Texas cities hundreds of miles away who entered the country without authorization as long as two years prior.
Brad Coe, the sheriff in Kinney County along the Texas border, said he woke up determined to hear directly from Abbott about what was going on with the law. “I’m on my way to his office right now,” he said Wednesday morning.
Along the Rio Grande, a group of about 20 migrants in Ciudad Juárez, Mexico, closely monitored their phones for any information about the new law as they gathered at the Paso del Norte bridge across from El Paso.
Yazmine Marquez, a 34-year-old Venezuelan woman, was awaiting an immigration hearing in El Paso later Wednesday.
“They have their reasons,” she said of the Texas leaders seeking to put the law into effect. “Not all migrants are trying to enter for good reasons. But most of us are trying to enter the United States for work and a better future.”
Abbott and other Texas officials have argued that the law is a necessary response to a record number of border crossings that at times have overwhelmed South Texas towns with hundreds of new migrants a day — and to what they say is the federal government’s failure to enforce the nation’s existing border security laws.