Supreme Court Gives Texas Green Light to Deport Illegal Immigrants

WASHINGTON — A divided Supreme Court on Tuesday allowed Texas to begin enforcing a state law that effectively allows officials to deport undocumented immigrants, despite objections from the Biden administration, which argued only the federal government has authority over immigration issues.

In an unsigned order, the conservative majority on the court denied a request from the White House to reinstate an injunction blocking Texas officials from enforcing the recently passed SB4.

Signed into law by Gov. Greg Abbott in May 2017, SB4’s primary purpose was to ban so-called sanctuary cities in the state of Texas.

In practice it made illegal immigration a state crime and empowered Texas courts, in some cases, to deport noncitizens back to Mexico.

It also made it a Class A misdemeanor for local officials as well as public colleges and universities to refuse to work with the federal government on immigration enforcement, and it imposed fines on those in violation of the law from a low of $1,000 to $25,500 for repeat offenders. 

It also allowed police officers to check the immigration status of those they detain if they choose.

Predictably, the legislation quickly became a subject of litigation, with the Biden administration arguing in its case that under the U.S. Constitution, federal law preempts the Texas statute.

Solicitor General Elizabeth Prelogar, representing the administration, urged the justices to toss the law on constitutional grounds, saying Texas and Abbott had overstepped their authority.

Texas, meanwhile, said it was merely doing what it had to do to respond to an unprecedented crisis at the border.

U.S. District Judge David Ezra sided with the administration and several citizen plaintiffs and blocked the law from going into effect. The 5th U.S. Circuit Court of Appeals ultimately let the law go into effect, at least until the challenges worked their way to a conclusion in the legal system.

While the majority did not explain the rationale behind its ruling, Justice Amy Coney Barrett wrote a concurring opinion in which she was joined by Justice Brett Kavanaugh.

In her opinion, Barrett noted the 5th Circuit had not blocked the law from going into effect pending appeal.

“Instead, in an exercise of its docket management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’ challenge to the district court’s injunction of SB4,” she wrote. “Thus, the 5th Circuit has not yet rendered a decision on whether a stay pending appeal is warranted.  

“That puts this case in a very unusual procedural posture,” she said. 

Later, Barrett wrote, “It is surprising that both the parties and the panel contemplated from the start that this court might review an administrative stay.  

“Before this court intervenes on the emergency docket, the 5th Circuit should be the first mover: It should apply the Nken factors and decide the motion for a stay pending appeal,” she wrote, citing the four-factor test set forth in Nken v. Holder used by the high court to assess cert worthiness and by lower courts to decide whether to dismiss a matter.

“It can presumably do so promptly. Texas’ motion for a stay pending appeal was fully briefed in the 5th Circuit by March 5, almost two weeks ago. Merits briefing on Texas’ challenge to the district court’s injunction of SB4 is currently underway. If a decision does not issue soon, the applicants may return to this court,” Barrett wrote.

“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,” the justice continued. “I would not get into the business.”

But Justice Sonia Sotomayor felt the majority took the worst course of action possible.

“Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico,” she wrote in a dissent in which she was joined by Justice Ketanji Brown Jackson.

“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” Sotomayor said.

Justice Elena Kagan issued a separate dissent, in which she argued that the 5th Circuit’s use of an administrative stay “should not spell the difference between respecting and revoking long-settled immigration law.”

White House Press Secretary Karine Jean-Pierre said in a written statement that the White House “fundamentally” disagrees with the Supreme Court’s order.

“SB4 will not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border,” Jean-Pierre said. “SB4 is just another example of Republican officials politicizing the border while blocking real solutions.

“We remained focused on delivering the significant policy changes and resources we need to secure the border – that is why we continue to call on Congressional Republicans to pass the bipartisan border security agreement, the toughest and fairest set of border reforms in decades,” she said.

Rep. Joaquin Castro, D-Texas, also panned the decisio, sating that “by enabling the Fifth Circuit’s disingenuous procedural jurisprudence, the United States Supreme Court undermines its own credibility.

“The Supreme Court has opted to allow for a trial run of a constitutional crisis,” he said.

“SB4 is an alarming state overreach that will likely lead to massive civil rights violations across our state,” Castro continued. “At a time of rising anti-Hispanic violence, this law puts a target on the back of anyone perceived by law enforcement to look or sound like an immigrant.

“While we wait for the Supreme Court’s final ruling, I’ll do everything I can to help Texans understand their rights and navigate the dangerous climate that Governor Abbott and state Republicans have created,” he said.

Dan can be reached at [email protected] and @DanMcCue