SCOTUS Allows Texas Border Law to Proceed, Then Fifth Circuit Says ‘Not So Fast’

By the time the case is resolved, SB 4 may be moot

By Andrew R. Arthur on March 20, 2024

On Tuesday, the Supreme Court issued an opinion in U.S. v. Texas denying the administration’s request to vacate a stay issued by the Fifth Circuit of a district court preliminary injunction of a Texas law — Senate Bill 4 (SB 4)— that makes it a state crime to cross an international boundary illegally. That allowed the state law to take effect, but only briefly because a three-judge panel of the Fifth Circuit, hours after the justices ruled, lifted its earlier stay. The way this case is going, it’s likely to end up back at the Supreme Court, at which point there may be a new administration with different border policies, and SB 4 may be moot.

SB 4. SB 4 would make it a 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 Lone Star 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 enable 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 (that would require CBP’s assistance, which the White House would never allow), but if aliens agree to go back, there’s little logically or practically the administration could do to stop them from going.

The Biden Administration’s Response. Texas Gov. Greg Abbott (R) signed that bill on December 18, and 10 days later the U.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, 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 has reported, he issued an order granting the administration a preliminary injunction on February 29, 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.

Of course, Border Patrol agents also apprehended more than 1.183 million illegal entrants at the Southwest border during that period, but that was likely beside the point, at least from Judge Ezra’s perspective.

The Fifth Circuit’s Order. In any event, Abbott issued a statement vowing to appeal the district court’s order shortly after it was issued, and in fact the state filed a brief Notice of Appeal with the Court of Appeals for the Fifth Circuit the day Judge Ezra issued his order.

To understand the latest Supreme Court opinion and the Fifth Circuit’s latest action, it’s important to note what happened next.

On March 2, a three-judge panel of the Fifth Circuit issued a temporary administrative stay of Judge Ezra’s preliminary injunction, which it then stayed for seven days at the administration’s request to allow DOJ to file an application with the Supreme Court to vacate that administrative stay.

The panel’s unpublished, per curia (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”. That is to say, they really don’t resolve issues so much as put them on ice while those issues can be resolved.

Justice Alito’s Administrative Stays. Notwithstanding the — by definition — perfunctory nature of the Fifth Circuit’s temporary administrative stay, DOJ did file an application to vacate that stay with the Supreme Court on March 4. It argued:

Absent this Court’s intervention, SB4 will go into effect at 12:01 a.m. on March 10, 2024, profoundly altering the status quo that has existed between the United States and the States in the context of immigration for almost 150 years.

Texas responded on March 11, explaining that Supreme Court intervention was not necessary at this stage because its appeal of Judge Ezra’s order is scheduled to “be argued in the Fifth Circuit on April 3, 2024, and the Fifth Circuit will undoubtedly expedite the issuance of its opinion”.

For that reason, and “[g]iven the Fifth Circuit’s effort to promptly resolve this appeal”, the state asserted, DOJ needs “an especially extraordinary reason to sidestep the ordinary appellate process”, which it had not shown.

DOJ’s application went to Justice Alito, circuit justice for the Fifth Circuit, who himself administratively stayed the Fifth Circuit’s order three times, once on March 4, again on March 12, and once more indefinitely on March 18.

Those stays surprised many observers who view Justice Alito as one of the more conservative justices on the Court, but in reality, his orders reflect both the novelty and the complexity of the constitutional issues surrounding SB 4, and the very nature of “administrative stays” themselves.

As noted, the purpose of such stays is to “freeze” the proceedings so jurists can get their adjudicatory ducks in a row, essentially leaving the status quo in place while difficult issues can be considered and resolved more dispositively.

And the issues in this case are particularly complex because: (1) no state has ever criminalized illegal entry in the manner that Texas did in SB 4; and (2) no prior administration has implemented border policies like the current one has.

Understand, Texas does not want to expend the resources that the enforcement scheme in SB 4 entails; but taking the state at its word, it has no other choice. Consider the following excerpt from a statement issued by Abbott on January 24:

The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration. [Emphasis added.]

That is hardly an outré position, given that the next day, 25 other Republican governors issued a statement in support of Abbott and Texas, in which they asserted:

President Biden and his Administration have left Americans and our country completely vulnerable to unprecedented illegal immigration pouring across the Southern border. Instead of upholding the rule of law and securing the border, the Biden Administration has attacked and sued Texas for stepping up to protect American citizens from historic levels of illegal immigrants, deadly drugs like fentanyl, and terrorists entering our country. [Emphasis added.]

For its part, and regardless of what you may think of this or any other administration, DOJ has an institutional duty to defend the federal government’s prerogatives, and in particular its unique primacy in our federal order on immigration enforcement.

Simply put, there’s a lot on the line in this case, and the courts are only reluctantly being dragged into it. They plainly want to get it right, and they are under significant pressure to get to that point.

The Supreme Court’s Order. As noted, on March 19, the Supreme Court denied the administration’s application to vacate the Fifth Circuit’s stay and vacated Justice Alito’s stay of that circuit-court order, with two justices in concurrence and three in dissent.

The four justices in the majority (Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch) didn’t explain their reasoning, but Justice Barrett, writing for herself and Justice Kavanaugh, leaned heavily into the “brief period of uncertainty” that the circuit court’s administrative stay has created as reason to deny DOJ’s application.

Additionally, as Justice Barrett noted:

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. I think it unwise to invite emergency litigation in this Court about whether a court of appeals abused its discretion at this preliminary step — for example, by misjudging whether an administrative stay is the best way to minimize harm while the court deliberates.

In other words, even DOJ’s application to vacate the Fifth Circuit’s stay is novel, and because it’s axiomatic that “hard cases make bad law”, the concurrence at least wants a little more to work with before it must decide this case with any finality — and before it creates precedent that will make the High Court a veritable tribunal of first resort in future “hard cases”.

That’s all to say, don’t read too much into that opinion. But don’t read too little into it, either.

To the best of my knowledge, the justices have never ruled against the federal government and in favor of a state that has made a move at immigration enforcement like SB 4. The last state to try anything even close was Arizona, and it lost in Arizona v. U.S. by a 5-to-3 vote (Justice Kagan recused herself).

That opinion meant Texas could implement SB 4, albeit only briefly.

The Fifth Circuit Back Again That’s because, as noted, the Supreme Court’s opinion kicked the case back to the Fifth Circuit, and just hours later, a slightly different three-judge panel of that court issued a second per curiam order dissolving the earlier administration stay, which leaves Judge Ezra’s preliminary injunction in effect.

I say a “slightly different panel”, because Judge Irma Carrillo Ramirez, appointed to the court last year by President Biden, was on both panels. She indicated when the first stay was implemented that she preferred to not issue that stay but instead to wait until after oral argument had been heard on Texas’ appeal of Judge Ezra’s order.

The oral argument on Texas’ appeal is now scheduled to be heard at the Fifth Circuit on Wednesday, but don’t expect a new order to be issued this week, or even the next one. As the foregoing shows, the issues in this case are both novel and unprecedented — as is the administration’s border policy — and it will take a while for the panel to work through them.

Note that Judge Andrew Oldham — a Trump appointee who is on the current panel — indicated in the latest order that he would have allowed the earlier circuit administrative stay to remain in effect until at least the March 20 oral argument occurred. That suggests that he’s inclined at this juncture to hear what Texas has to say.

That leaves Chief Judge Priscilla Richman — appointed by President George W. Bush — who’s also on the current panel, but hasn’t said anything, as the wild card in all of this. Plainly, she had concerns about the law taking effect without hearing DOJ’s side, but aside from that there’s no way to know how she will ultimately rule.

My guess is that unless the current panel fully agrees that Judge Ezra was flat-out wrong and that Texas is on strong ground constitutionally, SB 4 won’t take full effect until the Supreme Court weighs in again. By that point, there may be a new administration with different border policies and the whole issue will be moot. But I’ve been wrong before, so stay tuned.