The full U.S. Court of Appeals for the Fifth Circuit recently issued an opinion in U.S. v. Texas, reversing a three-judge circuit panel decision and a district court injunction blocking implementation of SB 4, a Texas state law that criminalizes illegal entries over the Rio Grande and into the United States. Not since the Alamo has the Lone Star State seen so many shots fired as in this protracted litigation — and circuit Judge Jim Ho reserved some fireworks for his concurrence.
SB 4
In late 2023, the Texas legislature passed, and Gov. Greg Abbott (R) signed, Senate Bill (SB) 4, which was set to go into effect in March 2024.
That law would make it a state crime for an alien to illegally enter Texas “directly from a foreign nation at any location other than a lawful port of entry”.
Given there’s only one “foreign nation” an illegal entrant could cross into Texas from without going through a port of entry, the focus of that provision is on migrants crossing the Rio Grande illegally from Mexico into the state.
That crime would be a class B misdemeanor under Texas law — carrying a penalty of up to 180 days in jail and a $2,000 fine — for a first offense, and a felony with a possible penalty of two years or more and a fine up to $10,000 for aliens who illegally reenter after a prior conviction.
The most important part of that bill, however, is a provision that would allow state magistrates to dismiss first-offense charges if the alien agrees to return voluntarily back across the border.
Texas lacks the authority to deport aliens itself, and as a practical matter it would hand those aliens over to CBP for immigration officers to do with them what it wanted — preferably removal or return.
The Biden Administration’s Response
You will notice how much of the preceding is written in the third conditional, or “unreal”, tense. That’s because for more than two years prior to the latest Fifth Circuit opinion, it wasn’t allowed to take effect.
Abbott signed that bill on December 18, but 10 days later, President Biden’s Department of Justice (DOJ) sent the governor a letter threatening to sue him if he tried to enforce it. Not surprisingly, Abbott refused to back down.
While the bill was not set to take effect until March 1, 2024, DOJ filed a complaint in federal district court in Austin, Texas, on January 3, asking the court to declare that SB 4 violates the U.S. Constitution, and to both preliminarily and permanently enjoin it.
The District Court Order
The case was assigned to U.S. district court Judge David Ezra, and as my colleague Elizabeth Jacobs noted at the time, the judge issued an order granting the administration a preliminary injunction on February 29, 2024, essentially stopping the state from enforcing SB 4.
The court not only found that SB 4 was preempted by federal immigration law, but also, as Jacobs explained, Judge Ezra:
referenced numerous examples of the federal government engaging in immigration enforcement and exercising its removal authority to dismiss Texas’ assertion that the federal government has “abandoned the very field it purports to now occupy”. The court noted that, “From May 2023 to November 2023, DHS ‘removed or returned over 400,000 aliens’, the vast majority at the southwest border.” The court also emphasized the role that immigration policy plays in foreign affairs to further support its conclusion that the authority to remove aliens from the [United States falls] solely with the federal government.
That said, Border Patrol agents apprehended more than 1.183 million illegal entrants along the 1,954-mile Southwest border during that six-month period, more than 642,000 of them just along the Texas portion, but that was likely beside the point, at least from Judge Ezra’s perspective.
The Fifth Circuit’s First Order
In any event, Abbott vowed to appeal the district court’s order shortly after it was issued, and the state filed a brief Notice of Appeal with the Fifth Circuit the day Judge Ezra issued his order.
It gets complicated after that.
On March 2, a three-judge panel of the Fifth Circuit issued a temporary administrative stay of Judge Ezra’s preliminary injunction but stayed the stay for seven days at the Biden administration’s request to allow DOJ to file an application with the Supreme Court to vacate it.
The panel’s unpublished, per curiam (unsigned and issued by the panel as a whole) order also directed the state’s appeal to be expedited and ordered that the state’s motion for a stay pending its appeal be deferred to the Fifth Circuit panel that ends up receiving the case.
As one legal expert has explained, “administrative” or “temporary” stays are “a little examined device that federal courts employ to freeze legal proceedings until they are able to rule on a party’s request for a stay pending appeal”.
Put plainly, temporary administrative stays really don’t resolve issues so much as put them on ice while those issues can be resolved.
“I Would Not Get into the Business”
As I explained at the time, what followed next was exceptional from a legal standpoint, as the Biden DOJ rushed to the Supreme Court to file an application asking the justices to review the administrative stay — which as noted is a largely ministerial stopgap, and one that doesn’t give the Court much to review.
DOJ did so because the Biden administration was convinced the world would end if SB 4 were allowed to take effect even briefly, or as the government put it, the law would “profoundly alter[] the status quo that has existed between the United States and the States in the context of immigration for almost 150 years” (!).
Non-plussed, a majority of the justices issued a brief, unsigned opinion on March 19, 2024, denying DOJ’s application, with Justice Barrett joined by Justice Kavanaugh writing in concurrence: “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.”
Back to the Fifth Circuit
That meant Texas could implement SB 4, but only briefly because just hours later, a three-judge merits panel of the Fifth Circuit court issued a second per curiam order dissolving the earlier administrative stay, leaving Judge Ezra’s preliminary injunction in effect.
All of this was breaking news at the time, but you’ll be forgiven if you’ve forgotten the whole kerfuffle.
Biden left and Trump took over the presidency on January 20, 2025, while the case was pending, and just less than two months later, DOJ voluntarily dismissed its action against the state.
That left three plaintiffs: two nonprofits (Las Americas Immigrant Advocacy Center and American Gateways) and the County of El Paso, Texas.
In a July 3, 2025, opinion, a divided three-judge panel of the Fifth Circuit affirmed Judge Ezra’s order granting a preliminary injunction as it pertained to Las Americas’ claims against Freeman F. Martin, director of the Texas Department of Public Safety (DPS), freeing it from having to consider the other claims.
Four weeks later, the state of Texas filed a petition for rehearing en banc, by all 17 judges on the circuit court, which was granted on August 29.
The En Banc Opinion
The Fifth Circuit’s latest opinion is long (159 pages, including concurrences and a dissent), but the only part that really matters is the majority opinion, which begins the document and runs for the first 11 pages.
Briefly, the nonprofits, which “provide legal services to aliens”, claimed that enforcement of the new law would “frustrate their missions” requiring them “to restructure their services”, and “causing them ‘to divert resources away from those they currently serve in the community’”.
It’s axiomatic that to bring a federal court challenge to a statute, a plaintiff must first have “standing”, that is the ability to “demonstrate a sufficient connection to and harm from the law or action being challenged”, because the federal judiciary only has “constitutional authority to resolve actual disputes”.
The majority concluded that neither Las Americas Immigrant Advocacy Center nor American Gateways could “spend its way into standing” or “manufacture its own standing” as they attempted to do, and the fact that both are “ideologically opposed to” the Texas law “does not demonstrate standing either”.
Simply put, because neither organization could show that it would be injured by the implementation of SB 4, they lacked standing to bring their claims opposing it.
El Paso County, for its part, argued it had standing because S.B. 4 would “dilute the trust” the community “has in its government”, and would force the county to expand its jail space to accommodate aliens arrested under the law and hire more officers.
The majority brushed off the first contention as a “non-cognizable reputational harm without a ‘close historical or common law analogue’ to an injury recognized by” either the Fifth Circuit or the Supreme Court, while it found that the county’s arguments about additional costs were “highly speculative” because the law hasn’t been enforced yet — in part because the county “chose to bring a pre-enforcement challenge” to SB 4, before it took effect.
“When enterprising plaintiffs repackage a generalized grievance as an ‘injury’”, the majority warned, “courts should rightly exercise caution”, which is what it chose to do here, and on the foregoing grounds vacated the preliminary injunction of SB 4.
Judge Ho’s Concurrence
As relatively bland and straightforward as the majority’s opinion was, Judge James Ho’s concurrence was anything but.
Judge Ho — long considered a possible Supreme Court pick by President Trump — latched onto the state’s arguments about its “power to engage in war in response to an invasion” as a separate ground for not considering the plaintiffs’ claims.
In his February 2024 order granting a preliminary injunction, Judge Ezra repeatedly concluded that “surges in immigration do not constitute an ‘invasion’” and denied that Texas was “engaging in war by enforcing SB 4”, but Judge Ho had a very different take on the matter.
He noted that “Nations have long weaponized migration to harm other nations”, and that concerns about such weaponization “date back to our Nation’s Founding” but have become more extensive and organized in recent years, with the United States becoming “one of the most popular targets of” such threats.
“Not surprisingly”, he continued, “Presidential Administrations of both parties have recognized that weaponized migration presents a serious threat to the security of the United States.”
In support of this contention, Judge Ho referenced President Obama’s justifications for using military force in Libya, President Clinton’s for airstrikes in Yugoslavia, and the following March 2001 finding of the National Intelligence Council: “The United States will remain vulnerable to explicit or implicit threats by foreign governments to use illegal and especially mass emigration as leverage in bilateral relations or to reduce political pressures arising from domestic policy failures.”
“It is precisely these kinds of threats that motivated the State of Texas”, Judge Ho asserted, to enact SB 4, particularly given that among the “more than 6 million illegal immigrants from more than 100 countries” who crossed the Southwest border under Biden were “hundreds of individuals on the terrorist watchlist” and “nearly 2,000 gang affiliates”.
Because “federal statutes ordinarily must give way to federal constitutional rights” (including under Article I, section 10 of the U.S. Constitution, which permits the states to “engage in War” when “actually invaded”), and because “detention ... is a fundamental incident of waging war”, Judge Ho concluded that SB 4 was within the scope of Texas’s “war power”, and thus excluded from judicial review.
From a Bang to a Whimper
The Fifth Circuit’s opinion in U.S. v. Texas ends more than two years of litigation that started out hot and contentious but then limped — largely unnoticed — to the finish line as the border became more secure under Trump. The plaintiffs will likely ask the Supreme Court for review, but I have a feeling the justices will let the implementation of SB 4 play out — which is what Biden should have done from the start.