Texas seeks immigration law appeal
Asks court to allow state to arrest, deport
Texas officials asked a federal appeals court Wednesday to unblock a new law that would allow the state to arrest and deport migrants, but they faced questions from judges about how such a crackdown would work considering the federal government’s longstanding authority over immigration.
The panel of judges with the US Court of Appeals for the 5th Circuit did not immediately issue a decision, and the state law remains on hold.
The push by Republican-led states to take on a direct role in immigration enforcement — historically a federal matter — is playing out amid a presidential race in which border security has emerged as a vulnerability for President Biden after three years of record illegal crossings.
Wednesday’s hearing followed a day of legal whiplash in federal court for the Texas law, known as S.B. 4. The Supreme Court briefly allowed the law to take effect, but the US Court of Appeals for the 5th Circuit halted the state from enforcing it late Tuesday.
Texas lawyers defended the law, saying that Biden, the FBI director, and other officials have acknowledged that there is a crisis at the border. Texas, as a sovereign state, has the right to arrest people for entering it illegally, the lawyers said.
Circuit Chief Judge Priscilla Richman wondered during the hearing how the Texas law would work in practice, listing scenarios that could quickly lead to confusion.
“This is the first time, it seems to me, that a state has claimed that they have the right to remove illegal aliens,” Richman said. “This is not something, a power, that historically has been exercised by states, has it?”
State officials said they would not deport migrants directly but would hand off detainees to federal officials or take them to border crossings with Mexico.
Richman wondered: What if federal officials, as they have said, refused to carry out an order? What if a foreign national entered the United States via Canada and crossed through several states on their way to Texas. Could they be arrested and deported under Texas’s new law?
Aaron Lloyd Nielson, the Texas solicitor general, said he wasn’t sure. In some cases, they might be arrested; in others, they might not. Nielson said the Texas law is “uncharted.”
Nielsen said Texas has the right to arrest people for entering the state illegally.
“Texas has decided that we are at the epicenter of this crisis,” he said. “We are on the front line, and we are going to do something about it.”
The law’s fate is yet another flash point in the nation’s polarized debate over immigration, which Republican candidate and former president Donald Trump has made a central theme of his campaign against Biden. Whatever the 5th Circuit decides, the status of the law is likely to go back before the Supreme Court.
The high court’s order Tuesday afternoon set off a fast-moving round of legal maneuvering in the lower court that has kept the law’s status in limbo.
The Supreme Court urged the 5th Circuit to decide quickly whether the law would remain in effect while litigation continues.
The brief order late Tuesday once again blocking the law did not explain the reasoning of the two judges — Richman, a nominee of George W. Bush, and Irma Carrillo Ramirez, a Biden nominee. The dissenting judge — Andrew Oldham, a Trump nominee — said only that he would have allowed the law to remain in effect before Wednesday’s hearing.
“It’s ping-pong,” Efrén C. Olivares, director of strategic litigation and advocacy at the Southern Poverty Law Center, said in a phone interview, describing the back-and-forth rulings.
Olivares said it is unclear how soon the three-judge panel will rule, since a preliminary injunction from a lower court halting the law remains in place.
The law makes it a state crime for migrants to illegally cross the border and gives Texas officials the ability to carry out their own deportations to Mexico.
How they will do so remains unclear. The Mexican government has said that it would not accept anyone sent back by Texas and condemned the law as “encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”
Mexican President Andrés Manuel López Obrador on Wednesday referred to the Texas law as draconian.