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The Supreme Court on Tuesday cleared the way for Texas to immediately begin enforcing a controversial immigration law that allows state officials to arrest and detain people they suspect have entered the country illegally.
The court’s three liberals disagree.
Legal challenges to the law continue in a federal appeals court, but the ruling gives a significant — but temporary — victory to Texas, which has been battling the Biden administration over immigration policy.
The court blocked the law from taking effect by placing an indefinite stay on the proceedings a day earlier, which was lifted by an order on Tuesday.
Senate Bill 4, signed by Republican Gov. Greg Abbott in December, makes illegal entry into Texas a state crime and allows state judges to order immigrants deported. Enforcement of immigration laws is generally a function of the federal government.
The law immediately sparked concern among immigration advocates about increased racial profiling, as well as detentions and deportation attempts by state authorities in Texas, where Latinos make up 40 percent of the population.
A federal judge in Austin had blocked the state government from enforcing the law. But the 5th U.S. Circuit Court of Appeals granted a temporary stay of the lower court’s ruling and said the law would go into effect on March 10 if the Supreme Court did not act. Two emergency appeals from the Biden administration and others soon followed.
On Tuesday, Abbott called the court’s order a “positive development” but acknowledged the case will continue in the appeals court.
White House press secretary Karin Jean-Pierre said Tuesday that “we fundamentally disagree” with the decision.
“SB 4 will not only make Texas communities less safe, but it will also burden law enforcement and sow chaos and confusion along our southern border,” she said in a statement. “SB 4 is just another example of Republican officials politicizing the border while blocking real solutions.”
As is often the case with urgent applications, the Supreme Court did not explain its reasons.
However, a concurring opinion written by Judge Amy Coney Barrett, joined by Judge Brett Kavanaugh, explained that the appeals court only issued a temporary “administrative” order. Barrett seemed eager to prevent the Supreme Court from reviewing such orders.
“To my knowledge, this Court has never reviewed an appellate court’s decision to impose — or not to impose — an administrative suspension,” Barrett wrote. “I wouldn’t go into business. When entered, an administrative stay is supposed to be a brief prelude to the main event: ruling on the motion to stay pending appeal.
Barrett said he thought it was “unwise to invite urgent litigation in this court about whether an appellate court abused its discretion at this preliminary step.”
Justice Sonia Sotomayor, whose dissent was joined by fellow liberal Justice Ketanji Brown Jackson, said the order “causes further chaos and crisis in immigration enforcement.”
The law, Sotomayor wrote in his dissent, “overturns the federal-state balance of power that has existed for more than a century, in which the national government has exclusive authority over the entry and removal of noncitizens.”
“Texas can now immediately enforce its own law criminalizing thousands of non-citizens and requiring their relocation to Mexico,” Sotomayor wrote. “This legislation would disrupt sensitive foreign relations, thwart the protection of individuals fleeing persecution, impede proactive federal law enforcement efforts, undermine the ability of federal agencies to detect and monitor imminent security threats, and deter individuals who non-citizens to report abuse or trafficking.”
Justice Elena Kagan noted in her brief dissent that her view of the issues in the case “are, as always in this posture, preliminary.”
“But the subject of immigration generally, and the entry and removal of noncitizens in particular, are matters that have long been considered the special province of the federal government,” the liberal justice continued.
The New Orleans Court of Appeals is scheduled to hear arguments in the case on April 3.
Barrett and Cavanaugh, two critical votes on the Supreme Court, wrote that justices should stay away from appeals courts when it comes to very short-term “administrative” breaks, which are typically used to give courts a few extra days to review briefs .
Barrett wrote that if the 5th Circuit doesn’t rule soon, the Biden administration and other parties in the case could go back to the Supreme Court.
“There may come a time, in this case or another, when this court is forced to conclude that the administrative stay has effectively become a pending appeal and to review it accordingly,” she wrote. “But at this point in this case, that conclusion would be premature.”
Tammy Goodlett, a lawyer representing some of those challenging the law, called the court order “unfortunate” and said it “needlessly puts people’s lives at risk.”
“We remain committed to the fight to ultimately repeal SB 4 to show the nation that no state has the power to pre-empt federal immigration enforcement,” she said.
Migrant crossings remain low after record levels in December
Migrant crossings at the U.S.-Mexico border remain low after record levels in December, Homeland Security officials told CNN.
On Monday, for example, the U.S. Border Patrol apprehended about 4,300 migrants at the southern border, according to one agency official. That’s down from more than 9,000 daily encounters in December, when there was an unprecedented influx of migrants.
Apprehensions of migrants fell 50% in January compared to December, according to US Customs and Border Protection. In January, border officials encountered more than 176,200 migrants at the U.S. southern border, down from December, when crossings reached nearly 302,000. CBP has not yet released totals for February.
Homeland security officials attributed the drop in passes to ongoing high-level talks between the U.S. and Mexico that have doubled enforcement, but warned that encounters could increase again amid record migration in the Western Hemisphere.
The Biden administration, two immigration advocacy groups and El Paso County are challenging the law.
In their appeal to the Supreme Court, administration lawyers argued that the law would “profoundly” change the status quo “that has existed between the United States and the States in the context of immigration for almost 150 years.”
“People can disagree on immigration. They always have. And Texas may be deeply concerned about recent immigration,” attorneys for the immigration groups and El Paso County wrote in court filings. “But so did California in the 1870s, Pennsylvania and Michigan in the 1930s, and Arizona in 2012. However, for 150 years this Court has made clear that states are not permitted to regulate the core immigration area of entry and exit. ”
Texas Attorney General Ken Paxton, a Republican, and other state officials told the Supreme Court that “The Constitution recognizes that Texas has the sovereign right to defend itself against violent transnational cartels that are flooding the state with fentanyl, guns and all kinds of brutality.”
Officials described Texas as the nation’s “first line of defense against transnational violence” and said the state was “forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”
This story has been updated with additional details.
CNN’s Priscilla Alvarez and Samantha Waldenberg contributed to this report.
