(The Center Square) – The Fifth Circuit U.S. Court of Appeals has again ruled against Texas’ border security bill, SB 4, after a series of conflicting rulings were issued last year at the district and appellate level and the U.S. Supreme Court.
Right before the July 4 holiday, a panel of three Fifth Circuit judges ruled against Texas, upholding a district court’s injunction.
Chief Judge Priscilla Richman wrote a 94-page ruling for the majority, concluding SB 4 “runs headlong into federal law.” Judge Andrew Oldham wrote a 90-page dissent arguing the majority usurped Texas’ sovereignty, underuled the Supreme Court’s standing doctrine and flouted Supreme Court precedent.
In 2023, during a fourth special session, the Texas legislature passed SB 4 making illegal entry into Texas a crime, giving law enforcement officials the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry, among other provisions. Gov. Greg Abbott signed it into law on Dec. 18, 2023.
He argued former President Joe Biden’s “deliberate inaction … left Texas to fend for itself,” pointing to Article 1 Section 10 of the U.S. Constitution, which empowers states “to take action to defend themselves and that is exactly what Texas is doing.” The clause was cited by 55 Texas counties that declared an invasion, The Center Square exclusively reported.
The Biden administration sued, as did El Paso County, Las Americas Immigrant Advocacy Center and American Gateways, asking the court to block SB 4 from going into effect. The administration argued the federal government has the “exclusive authority under federal law to regulate the entry and removal of noncitizens,” and SB 4 “creates purported state immigration crimes for unlawful entry and unlawful reentry, permits state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders.”
The district court agreed, issued an injunction and Texas appealed.
What followed was described as a “legal whiplash.” A panel of three Fifth Circuit judges consolidated the cases and allowed SB 4 to go into effect pending appeal. On appeal, the Supreme Court stayed the Fifth Circuit ruling and less than 24 hours later reversed its ruling, allowing SB 4 to go into effect last March, The Center Square reported.
Within hours of the Supreme Court’s ruling, the Fifth Circuit reversed its previous ruling and banned SB 4 from going into effect, The Center Square reported.
After President Donald Trump came into office, the DOJ dropped its lawsuit. The remaining lawsuits are being litigated.
Judge Richman concluded that the plaintiffs were likely to succeed on the merits of their preemption claims.
SB 4 conflicts with the Immigration and Nationality Act, “clearly conflicts” with federal code, and interferes with US diplomatic relations, the majority held. “Authorizing Texas state judges and magistrate judges to remove aliens from the United States without notice to or consent from the federal government,” the court held, “runs headlong into federal law.”
They also said, “it is problematic that state courts will determine if an alien has entered illegally and order their removal,” noting that a majority of the full court already concluded “that state courts may not assess the legality of an alien’s presence.”
Judge Oldham disagreed, saying the ruling usurped Texas’ “sovereign right to police its border and to battle illegal immigration” and “underrules the Supreme Court’s standing doctrine. It demonstrates our rule of orderliness. It turns upside down the standards for preliminary injunctions and facial preenforcement review. It finds that Congress somehow preempted the field of immigration – by affirmatively authorizing States to participate in it … and subverts the other preliminary-injunction factors …”
He also said the court made multiple errors in its ruling, including holding the case for 15 months. As a result, Texas suffered “irreparable injury with each day a federal court stands between the State and enforcement of its law” with a trial date looming, he said.
Oldham highlighted examples of “Texas’s place at the epicenter of” the border crisis, argued “El Paso County’s theory of standing is equally unavailing” and plaintiffs “lack a cause of action.” He also rejected the majority’s main claim, saying, “Texas’s laws are neither field nor conflict preempted” and said they flouted Supreme Court precedent.
The majority ruling was “a sad day for Texas and for our court,” for “the millions of Americans who are concerned about illegal immigration and who voiced those concerns at ballot boxes across Texas and the Nation – only to have their voices muted by federal judges,” and “for the rule of law,” he said.
Texas is appealing to the full court.
