WASHINGTON, D.C. — On Tuesday, Justice Samuel Alito of the United States Supreme Court extended an executive stay temporarily pausing the implementation of SB 4, a controversial immigration law that would make illegal entry into Texas a state crime. Alito issued his original stay last Monday; the extension will prevent the state from enacting the law until this coming Monday, March 18.
SB 4 was passed during a long stretch of legislative overtime at the tail end of 2023. The bill was a major victory for state Republicans, who have long argued that the Biden administration isn’t doing enough to quell an “invasion” of migrants and criminals at the border. “The Texas Legislature’s and the Governor’s efforts — all within their authority — have effectively driven Texas to act as a shield for the rest of the country against the criminal activities of the Mexican cartels,” the Texas Public Policy Foundation (TPPF), a conservative think tank, wrote just after the bill was passed. “We commend these efforts.”
Some disagree with Gov. Greg Abbott and conservative legislators that regulating immigration is “within their authority.” Shortly after the bill was passed, the national and state chapters of the American Civil Liberties Union (ACLU) and the Texas Civil Rights Project sued the state on behalf of the County of El Paso and two immigrants’ rights organizations, Las Americas Immigrant Advocacy Center and American Gateways.
The federal Department of Justice also filed suit in January, and the two suits were combined over a central concern: does the state of Texas have the power to enforce federal immigration law?
On February 29, Judge David Ezra of the Fifth Circuit Court of Appeals said no, opening from the bench that SB 4 constituted a “slap in the face” to federal immigration law. He also predicted that his ruling would be just another stepping stone to the Supreme Court — a prediction that quickly came to pass after the state of Texas filed an appeal.
Counsel for the state of Texas filed a response on Monday, indicating that they stood firm on their position: that Texas has the power to take action against “violent transnational cartels that flood the State with fentanyl, weapons and all manner of brutality.”
Because of Texas’ geographic position on the border, the state argued that it faced an unfair burden of handling what should be a national problem. “Texas is the first line defense … and has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border,” they wrote.
The feds’ response to Alito’s extension, filed Tuesday afternoon, addressed some of these issues. Though the DOJ has leaned on Arizona v. United States — a 2012 Supreme Court case that struck down a state law similar to SB 4 — they decided instead to lead with Chae Chan Ping v. United States, a 135-year-old immigration case.
The Chae Chan Ping decision was born of a similar political climate: the United States signed a treaty with China making it easier for Chinese nationals to immigrate to the United States. Once large numbers of people from China started arriving on the West Coast looking for work, attitudes changed, resulting in the Chinese Exclusion Act of 1882. “Their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization,” the government wrote in its defense.
Chae Chan Ping and a suite of other immigration cases in the wake of the Chinese Exclusion Act established an immigration policy pecking order; immigration is regulated by the federal government, but federal policy must adhere to international treaties.
In United States v. Texas — the case currently before the Supreme Court — the government argues that Texas cannot claim that it faces exceptional circumstances as a way to thwart Constitutional precedent. “People can disagree about immigration. They always have,” they wrote. “But the same was true of California in the 1870s, Pennsylvania and Michigan in the 1930s, and Arizona in 2012. Nevertheless, for 150 years this Court has made clear that states are not allowed to regulate the core immigration field of entry and removal.”