In the majority decision, the circuit’s chief judge, Priscilla Richman, wrote that Congress “left no room” in U.S. law for state officials to intrude on immigration enforcement, even as she sympathized with Texas’s predicament as a border state amid a historic influx of migrants.
Responding to illegal immigration is the federal government’s role, she wrote.
“Texas, nobly and admirably some would say, seeks to fill at least partially the gaping void,” Richman, a conservative nominated by President George W. Bush, wrote in a 50-page decision with Judge Irma Carrillo Ramirez, a Biden nominee. “But it is unlikely that Texas can step into the shoes of the national sovereign under our Constitution and laws.”
The decision follows legal skirmishes over the new state law, known as Senate Bill 4. The Supreme Court briefly allowed the law to take effect last week and urged the appeals court to rule quickly on whether to suspend it pending legal challenges.
The appeals decision is a preliminary step, focusing only on Texas’s request that the judges stay a Feb. 29 lower-court ruling by U.S. District Judge David A. Ezra, a Republican appointee in Austin. Ezra issued a preliminary injunction halting the law, saying it intruded more into federal powers over immigration than did an Arizona immigration law that the Supreme Court partly struck down in 2012.
The same three-judge appeals court panel, based in New Orleans, will hear Texas’s request to overturn Ezra’s injunction April 3, which is likely to raise the same legal arguments.
Texas officials did not immediately respond to the ruling Wednesday, and it was unclear if they would appeal it.
Lawyers said Texas could appeal Tuesday’s decision to the full 5th Circuit or to the Supreme Court. Or the state could wait to appeal the decision after next week’s hearing.
The office of Texas Gov. Greg Abbott (R) did not respond to requests for comment, but the governor posted on X that nearly 200 soldiers in the Texas Tactical Border Force had arrived in El Paso on Tuesday.
“Texas will continue to utilize all available resources and personnel to secure our border,” he wrote.
The dissenting judge on the appeals panel worried that the Texas law will never take effect after two court decisions cited more than a century of Supreme Court rulings that the federal government controls immigration.
“Today’s decision means that we’ll likely never know how Texas’s state courts and its state law-enforcement officers would have implemented S.B. 4,” Judge Andrew Oldham, a Trump nominee and Abbott’s former general counsel, wrote in a 71-page dissent.
Oldham wrote that the appeals panel will “presumably affirm” Ezra’s ruling after next week’s hearing and return the case to the lower court for a trial, where the Texas law will probably be permanently blocked.
“So, absent intervention by the en banc court or the Supreme Court, that will be that,” Oldham wrote.
Oldham said the court should have allowed Texas to enforce the law to examine how it works. Texas argued that the state law complemented federal law, rather than conflicted with it.
“In our federal system, the State of Texas is supposed to retain at least some of its sovereignty,” Oldham wrote.
The court panel’s majority said the Texas law irreparably conflicts with federal law. Deportations are civil proceedings, where Texas makes them criminal proceedings. The state also could deport people without giving them and federal officials a chance to sort out if they could legally stay in the United States to seek asylum or another protection.
The judges in the majority also criticized Congress, saying that “one root cause for the lack of action by the Executive could well be the failure of Congress to spend the funds necessary to address the massive increases in the numbers of noncitizens illegally entering the United States.”
Oldham also cited research by Harvard law professor Gerald Neuman, noting that historically U.S. states have exercised some control over immigration.
But Neuman said in a phone interview Wednesday that those conditions were a long time ago, before the Civil War when Southern states wanted to control the movement of free and enslaved Black people. Congress began regulating immigration through a law passed in 1875.
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, one of the organizations that sued to block a 2010 state immigration law in Arizona, said that unless a higher court intervenes, it could take years before the Texas case is decided.
There is no guarantee that the Supreme Court will take it up, he said. The court in 2012 partially struck down Arizona’s law for similar reasons, and a later court settlement considerably narrowed the law’s reach, he said.
Texas Republicans passed the S.B. 4 law last year after accusing President Biden of weak border enforcement. U.S. authorities have apprehended an average of 2 million migrants a year who crossed the U.S.-Mexico border illegally since Biden took office, the highest the Border Patrol has ever recorded.
Democrats have countered that Republicans are refusing to pass a bipartisan Senate bill that would address the influx by expanding enforcement. The Biden administration has accused Republicans of stalling in response to former president Donald Trump, an immigration hard-liner who denounced the bill and is the likely Republican nominee to challenge Biden in November’s presidential election.
The Texas law makes it a crime for a noncitizen to enter the state illegally from another country. Migrants convicted of violating the law could face up to six months in jail, while those who return after having been deported could face felony charges and a maximum of 20 years in prison.
The law also authorizes state judges to order deportations to Mexico. President Andrés Manuel López Obrador, however, has said his government would reject any attempt by Texas officials to send migrants to Mexico.
The Biden administration, a pair of Texas nonprofit groups and the county government of El Paso filed the lawsuits seeking to stop the state law from taking effect.
“We look forward to ending S.B. 4 once and for all,” Cody Wofsy, deputy director of the American Civil Liberties Union Immigrants’ Rights Project, said Wednesday. The ACLU represents the two Texas nonprofits and El Paso County in the case.
At least one other lawsuit has been filed on behalf of a Texas community organization, La Unión del Pueblo Entero (LUPE), and four unidentified immigrants who allege they are eligible to stay in the United States legally but could be targeted for deportation under the state law.
Tania Chavez, president and executive director of LUPE, praised the decision, saying Latinos in Texas, who make up more than 40 percent of the state’s population, feared racial profiling and wrongful deportations of U.S. citizens or immigrants with a legal case to remain in this country.
She said LUPE is urging people to remain aware of their rights, especially as states such as Iowa are trying to replicate Texas’s law, and to apply for U.S. citizenship if they are eligible for it.
“Today it’s Texas, but we don’t know what will happen in other states tomorrow,” said Chavez. “Don’t leave things to fate.”
William Branigin, Ann E. Marimow and Arelis R. Hernández contributed to this report.
