Appeals Court Considers Reviving Texas Migrant Law, Now on Hold


A panel of three federal appeals court judges heard arguments on Wednesday in a bitter legal fight between Gov. Greg Abbott and the Biden administration over Texas’ new migrant arrest law, punctuating a dizzying series of legal developments over the previous 24 hours that left migrants and many law enforcement officials in Texas confused and uncertain.

The session had been hastily convened the day before by the U.S. Court of Appeals for the Fifth Circuit, leaving lawyers scrambling to prepare for a hearing that could determine whether one of the nation’s most aggressive state efforts to enforce security on the U.S.-Mexico border should be allowed to become law.

Two judges spoke frequently during the hearing, and their comments suggested a split on the panel.

The chief judge of the court, Priscilla Richman, appeared skeptical of the Texas law, particularly its provision allowing state courts to order migrants back to Mexico. As she questioned Aaron Nielson, the Texas solicitor general, she read from a 2012 Supreme Court case out of Arizona that upheld the supremacy of the federal government in immigration matters.

“It seems to me that this statute washes that away,” Judge Richman said of the Texas law.

The other judge who spoke, Andrew S. Oldham, a former general counsel to Mr. Abbott, peppered the U.S. Justice Department’s lawyer with questions and appeared likely to side with Texas. Mr. Oldham had dissented in a Tuesday night Fifth Circuit ruling that effectively put the law back on hold, hours after the U.S. Supreme Court had allowed it to go into effect.

Judge Irma Carrillo Ramirez, who was nominated by President Biden and confirmed last year, did not appear to speak during the hearing, which was conducted by video conference and streamed live to the public on audio.

The appeals court judges were considering a request by Texas to allow the law to take effect while its constitutionality is being challenged in court. A district court originally blocked the law in February. The appeals court judges issued no ruling during Wednesday’s hearing.

In a wide-ranging speech in Austin shortly after the hearing, Mr. Abbott, who has said that he expects the Supreme Court to eventual decide the constitutionality of the law, suggested that the statute had been crafted to challenge the high court’s precedent in the 2012 case, Arizona v. United States, which was decided 5 to 3.

“We found ways to try to craft that law to be consistent” with the dissent that the late Justice Antonin Scalia wrote in the Arizona case, Mr. Abbott said. Justice Scalia had suggested that the Arizona measures did not conflict with federal law but simply added state penalties to help enforce existing federal restrictions.

The hearing followed a rapid series of back-and-forth court decisions on Tuesday, including a procedural ruling by the Supreme Court that allowed the law to briefly go into effect for several hours. Then, on Tuesday night, the appeals court panel blocked the law again, ruling in a 2-to-1 decision.

The confusion continued into Wednesday and extended to state troopers, local police departments and elected sheriffs, some of them eager to implement the law, known as Senate Bill 4.

The law makes it a crime to cross into Texas from another country anywhere other than a legal port of entry, punishable by jail time, a deportation order from a state court judge or both. It would apply not just to migrants on the border, but also to people in Texas cities hundreds of miles away who entered the country without authorization as long as two years prior.

Brad Coe, the sheriff in Kinney County along the Texas border, said he woke up determined to hear directly from Mr. Abbott about what was going on with the law. “I’m on my way to his office right now,” he said on Wednesday morning.

Along the Rio Grande, a group of about 20 migrants in Ciudad Juárez, Mexico, closely monitored their phones for any information about the new law as they gathered at the Paso del Norte bridge across from El Paso. Yazmine Marquez, a 34-year-old Venezuelan woman, was awaiting an immigration hearing in El Paso later on Wednesday.

“They have their reasons,” she said of the Texas leaders seeking to put the law into effect. “Not all migrants are trying to enter for good reasons. But most of us are trying to enter the United States for work and a better future.”

Mr. Abbott and other Texas officials have argued that the law is a necessary response to a record number of border crossings that at times have overwhelmed South Texas towns with hundreds of new migrants a day — and to what they say is the federal government’s failure to enforce the nation’s existing border security laws.

“Texas has a right to defend itself,” said Mr. Nielson, the Texas solicitor general, during his opening presentation on Wednesday. He argued that the state’s law mirrored federal statutes that already make it a crime to cross into the country without authorization.

“What we’re trying to do is to make sure that Congress, who sets the national immigration laws, that those laws are followed,” he said. “And to the extent that we can’t enforce federal law, which we’re not claiming to do,” he added, “we’re going to enforce our own laws.”

But Mr. Nielson struggled with hypothetical questions about the law. Judge Richman posed the case of a migrant who might have crossed without authorization from Mexico into Arizona, and then years later went to Texas: Could that person be arrested under the law?

“I don’t know the answer,” Mr. Nielson said. “Maybe?”

The federal government has argued, and did so at the hearing on Wednesday, that the U.S. Constitution and decades of legal precedent made immigration enforcement a federal responsibility.

Daniel Tenny, a lawyer for the U.S. Justice Department, said that the Texas law ran afoul of federal law and Supreme Court precedent, particularly a 2012 decision, Arizona v. United States, that was decided when Arizona tried to pass a state immigration enforcement law.

He said that the district court had simply preserved a system of federal jurisdiction over immigration and borders “that’s been in effect for 150 years.”

Legal experts who followed the hearing said the panel appeared inclined to leave the lower-court injunction in place while the appeals process goes forward, meaning that the law would stay on hold.

“The bottom-line takeaway is that the court is extremely likely to deny Texas the stay that they were asking for, which means that S.B. 4 will remain blocked,” said Raffi Melkonian, a federal appellate lawyer based in Houston who appears regularly before the Fifth Circuit.

The same panel of judges is set to hear fuller arguments on April 3 over the constitutionality of the law and the appeal by Texas of the injunction. Mr. Melkonian said that judging by the arguments on Wednesday, it did not appear that Texas would be on good footing for that hearing, either.

But the Fifth Circuit, based in New Orleans, has gained a reputation for hard-line conservatism. Many of its judges adhere to “originalism,” which seeks to interpret the Constitution through the lens of its 18th-century authors.

The composition of the court was dramatically shaped by President Donald J. Trump, who nominated six of the 17 judges, including Mr. Oldham. Six of the others were nominated by other Republican presidents.

Both parties were likely to appeal any ruling, and Mr. Abbott has already said that he expects the fight over the law to reach the Supreme Court.

The high court stepped into the case on Tuesday, but it did so on procedural grounds and did not address the broader question of the law’s constitutionality. It kicked the case back down to the Fifth Circuit, where a different set of judges had issued a procedural pause to the lower-court injunction, allowing the Supreme Court to weigh in.

When the high court sent it back and declined to order any further delay, the law was in effect for a few hours on Tuesday afternoon and evening.

Some Texas officials celebrated. The attorney general, Ken Paxton, called it a “huge win.” But others, like Mr. Abbott, were more muted. “A positive development,” he called it in a statement.

Indeed, in a concurring opinion written by Justice Amy Coney Barrett and joined by Justice Brett M. Kavanaugh, the court urged the Fifth Circuit to take swift action. That was what appeared to trigger the appeals court panel’s announcement of Wednesday’s oral arguments, and a separate order dissolving their earlier procedural pause — blocking the law again.

As the hearing was taking place on Wednesday, President Andrés Manuel López Obrador of Mexico attacked the Texas law during a news conference, calling it “draconian” and “completely dehumanized.” The Mexican government has said that it would refuse to accept deportations conducted by Texas officials under the law.

“It is as if the governor of Tamaulipas were to apply a law against Texans visiting Mexico,” he said, referring to the state in Mexico.

If the law were allowed to go into effect, Texas would be the only state known to deputize local authorities to arrest people suspected of illegally entering the country. Legal experts said a ruling in the state’s favor could encourage other Republican-led states to enact similar laws. On Tuesday, lawmakers in Iowa passed their own similar bill.

Reporting was contributed by Edgar Sandoval, Reyes Mata III, Mattathias Schwartz, David Montgomery and Emiliano Rodríguez Mega.


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