Last week, the Supreme Court let Texas’ extreme immigration law take effect. The dissenting Democratic appointees explained how that decision flew in the face of long-standing precedent that gives the federal government exclusive authority over entry and removal of people in the country illegally.
As it turned out, Senate Bill 4 took effect only briefly, because the 5th U.S. Circuit Court of Appeals blocked it shortly after the Supreme Court condoned it.
But the Supreme Court’s action was a temporary one, and the case may go back to the high court for a ruling that could officially upend that long-settled principle.
But the Supreme Court’s action was a temporary one, and the case may go back to the high court for a ruling that could officially upend that long-settled principle.
For now, the case is at the intermediate appellate level. In a Tuesday ruling, the 5th Circuit kept SB 4 blocked while litigation continues. The majority on the 5th Circuit panel explained, over dissent from a Donald Trump appointee: “For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power. Despite this fundamental axiom, S. B. 4 creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal.”
The panel majority cited Arizona v. United States, a 2012 Supreme Court ruling that affirmed the federal government’s authority on these matters. The majority deemed the dissent’s arguments “similar if not identical to those” put forth in the Arizona case by Justice Antonin Scalia, who disagreed with that majority. But Scalia’s view “did not carry the day in Arizona,” the majority wrote, “and we are not free to ignore the reasoning in Arizona.” Yet, as we’ve seen, the Supreme Court is free to, and does, ignore whatever it wants. The SB 4 case is set for further argument next week in the 5th Circuit. But if it goes back to Washington, we’ll see what carries the day at the current court. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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