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A Reversal of Fortune at the Texas Border

Arresting illegal border crossers blocked again.

Late Tuesday, March 19, just hours after the US Supreme Court issued a decision saying the arrest of those suspected of being illegal immigrants by Texas law enforcement was allowable, the 5th Circuit Court of Appeals released an order blocking the law from taking effect.

Texas Senate Bill 4 was signed into law by Gov. Greg Abbott last December, permitting local police to arrest and detain those they suspect of crossing the border illegally. The Biden administration was quick to sue, claiming that the new law undermined federal authority at the US southern border.

Who Has Border Control?

The head spin by the 5th Circuit was not entirely unexpected, however. The SCOTUS decision did not rule on the merits of the law but rather on the process. Justice Amy Coney Barrett wrote:

“Before this Court intervenes on the emergency docket, the Fifth Circuit should be the first mover…

“So far as I know, this Court has never reviewed the decision of a court of appeals to enter — or not enter — an administrative stay. I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal.”

And, indeed, due to the law being kicked back to the lower court, arguments will be heard today, Wednesday, March 20.

The law in question makes it a crime to illegally enter the United States and allows the Lone Star State to deport those who are arrested. It also provides for up to six months in prison and potential felony charges for repeat offenders.

Mexico has openly stated that it will refuse to accept the return of Mexican citizens who are deported, claiming that Senate Bill 4 is racist and that it would separate families.

Dissent in the Ranks

Not all justices were on board with Barrett’s ruling. Justices Sonia Sotomayor and Ketanji Brown Jackson issued their own dissent, suggesting that the decision invites “further chaos and crisis in immigration enforcement.” Their argument warns that a much bigger fight is on the horizon, one that presages a significant constitutional battle. They wrote:

“Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.”

The plaintiff – in this case, the federal government – argues that the new law would create chaos and undermine efforts to manage the flow of illegal immigrants. White House Press Secretary Karine Jean-Pierre said that it was a “harmful and unconstitutional law” that will “not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border.”

A Bigger Question

There is every chance that this case will again return to the Supreme Court as it directly impacts the separation of powers between the federal government and state government. Ultimately, it could come down to the question of whether states can craft their own immigration enforcement laws.

While such ponderings were formerly on the sidelines of public discourse, the practically open southern border and the ensuing migrant crisis have sparked a new era of debate. But as once-proud sanctuary cities begin to feel the heat and the burden, one might wonder how much blue state support there will be for the status quo.

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