The legal battle over Texas’s controversial SB 4, a cruel and racist law designed to create a state-level immigration enforcement system, has become increasingly chaotic in the past several days as the Supreme Court of the United States and the Fifth Circuit Court of Appeals issued a slew of orders allowing the law to briefly take effect before once again blocking its implementation.
How did we get here and what do legal experts expect to happen next?
SB 4 Arguments
As we have written about in previous newsletters, SB 4 makes unauthorized entry into the state a crime under state law, empowering Texas law enforcement to arrest and state courts to order the de facto deportation of individuals suspected of crossing the border illegally.
Texas has argued that SB 4 is a necessary response to federal inaction on immigration, claiming the law falls within the state’s constitutional right to self-defense against “invasion.” The federal government and immigration/civil rights groups have countered that SB 4 blatantly usurps the federal government’s long-standing exclusive jurisdiction over immigration law. They argue the law creates confusion and violates the Constitution’s Supremacy Clause, which establishes federal law as the supreme law of the land.
“For us, the calculus is simple,” wrote the Texas AFL-CIO. “SB 4 will greatly harm working people who cross the border to make a living and even citizens who are profiled and asked, in an encounter with law officers, to show papers. This law should never have taken effect, even for a few hours.”
“No matter how many police departments swear up and down it won’t work that way, the law poses no barrier to questioning anyone anywhere in the state. Sooner or later, a law enforcement head looking to score political points will react to the ‘invasion’ rhetoric of Gov. Greg Abbott and test the limits of the law.”
“SB4 is the most dangerous, hateful and anti-immigrant law the United States has ever seen,” said the Workers Defense Action Fund. “Migrants and the Latin community have historically been used as scapegoats in America’s political chess game, and this is hurting our communities.”
A Procedural Rollercoaster
Initially, a federal District Court Judge David A. Ezra issued a preliminary injunction on Thursday, February 29 blocking SB 4’s implementation based on concerns it conflicts with federal immigration laws and the U.S. Constitution, largely rejecting the state’s arguments. This decision echoed the 2012 Arizona v. United States case, where the Supreme Court blocked an Arizona law creating state-level immigration crimes in a 5-3 decision. Legal experts consider SB 4 to be even more extreme than the Arizona law preempted by the Supreme Court.
Texas, however, wasn’t deterred. The state appealed to the Fifth Circuit Court of Appeals, requesting a “stay” of Judge Ezra’s preliminary injunction – a temporary order allowing SB 4 to take effect while the appeal progressed. A three-judge panel of the Fifth Circuit granted a temporary “administrative stay,” leaving the merits of the injunction undecided but allowing SB 4 to be implemented until the appeals court could determine if a longer stay was warranted.
This decision sparked further action by the plaintiffs in the case. The federal government and immigration/civil rights groups filed emergency applications with the Supreme Court asking for SB 4 to be kept on hold while the litigation continues. Justice Alito, acting as the “circuit justice” for the Fifth Circuit, initially issued two administrative stays, halting SB 4 before the Supreme Court could formally consider the emergency applications. These administrative stays were extended multiple times before the Supreme Court finally acted on Tuesday, March 19.
The Supreme Court Weighs In
The Supreme Court ultimately denied the emergency applications on Tuesday, March 19, allowing SB 4 to briefly take effect. However, a key detail emerged in a concurring opinion authored by Justice Barrett and joined by Justice Kavanaugh which focused on a procedural issue. They argued that the Court shouldn’t intervene in “true administrative stays” issued by appeals courts, which are meant to be temporary measures. Nevertheless, they said that the Fifth Circuit should be able to rule on Texas’s motion for a stay pending appeal “promptly,” and that, “If a decision does not issue soon, the applicants may return to this Court.”
The Plot Thickens: The Fifth Circuit Responds
This procedural reasoning appeared to nudge the Fifth Circuit. Within hours, a separate three-judge panel dissolved the earlier panel’s stay of Judge Ezra’s injunction, once again blocking SB 4, and set Texas’s motion for a stay pending appeal for oral argument on Wednesday morning via Zoom. This move suggests the Fifth Circuit might be hesitant to grant a longer stay, especially considering the Barrett/Kavanaugh opinion.
What Lies Ahead?
The Fifth Circuit will hear arguments on Wednesday, April 3 on the merits of the preliminary injunction itself. However, the appeals court rules, and legal experts expect that this case will likely end up before the Supreme Court for a final decision on SB 4’s constitutionality.
In the meantime, local law enforcement agencies from Houston to Fort Worth have issued statements suggesting they will not proactively enforce SB 4 out of concern for the negative impact it would have on community policing and safety, while others in more conservative parts of Texas have stated they will enforce the law, but face logistical and resource constraints which will make enforcement challenging. Mexico also quickly responded, criticizing SB 4 as an anti-Christian violation of human rights and stating that the country will not accept anyone removed by Texas under the law.
We urge all educators and school staff to closely review the helpful resources detailing immigrant students’ rights that the Intercultural Development Research Association (IDRA) has compiled. Stay tuned, as Texas AFT will keep members informed about this important legal battle over one of the most extreme anti-immigrant laws ever passed by any state legislature in the country.