WASHINGTON, D.C. — On Tuesday afternoon, the Supreme Court lifted the latest in a series of executive stays preventing Texas’ controversial immigration law SB 4 from taking effect. Citing procedural technicalities, Justices Amy Coney Barrett and Brett Kavanaugh penned a decision in favor of giving Texas the green light to enforce the law while the case got bumped back down to the Fifth Circuit Court of Appeals.
Top Republican officials immediately took to social media to celebrate the win — but the celebration didn’t last long. As the clock neared midnight on Tuesday evening, the Fifth Circuit pushed forward, blocking the law temporarily while oral arguments proceed on whether the law should stay suspended while litigation continues.
SB 4’s journey through the courts has been a roller coaster ride. The law — which makes illegal immigration to the United States a state crime — has been the subject of litigation since it was signed into law in December. The law was originally supposed to take effect on March 5, but a lawsuit filed by the the national and state chapters of the American Civil Liberties Union (ACLU) and the Texas Civil Rights Project spiraled into a much larger issue after the federal Department of Justice joined as a plaintiff in January.
The central issue of the suit is whether or not the state has the authority to enforce immigration law, which has been the exclusive responsibility of the federal government for over a hundred years of court precedent. Barrett and Kavanaugh’s decision did not rule on whether or not SB 4 is unconstitutional, but instead criticized the way that the Fifth Circuit handled the case.
In Tuesday’s ruling, Justice Barrett wrote that the lower court’s decision to reverse a district judge’s ruling without following the proper steps put the case in a “very unusual procedural posture.” In their dissent, Justices Jackson and Sotomayor doubled down on their colleagues’ disappointment in the Fifth Circuit, writing that the court had developed a “troubling habit” in the way they approached the use of stays in court proceedings.
Justice Elena Kagan penned her own dissenting opinion, quibbling with Barrett’s interpretation of court procedure. “A court’s unreasoned decision … should not spell the difference between respecting and revoking long-settled immigration law,” she wrote.
Barrett did not speak on the merits or shortcomings of SB 4, but did explain that the case was not yet over. “If a decision [from the lower court] does not issue soon, the applicants may return to this Court,” she wrote.
Sotomayor, on the other hand, did detail her fears about how the law might affect both private citizens and court precedent, writing that the law was “antithetical to the Constitution” and “invites further chaos and crisis in immigration enforcement.”
Responses to Tuesday’s ruling have been — predictably — polarized. The government of Mexico fired back almost immediately, saying that they would “not accept, under any circumstances, repatriations from the state of Texas” — a cornerstone of the law.
Republican Representative Tony Gonzales, who represents the Big Bend region in Congress, expressed support. “SB4 will give Texas the ability to enforce against illegal immigration and do what President Biden refuses to do,” he wrote in a press release. “Today’s ruling on SB4 by the Supreme Court is an important step forward in our fight to secure the southern border, and I stand by Texas as the state moves forward to enforce this legislation.”
Tech mogul Elon Musk — who visited the border with Gonzales in September — responded to a tweet by Gov. Greg Abbott celebrating a “positive development” in the suit. “Crazy that it wasn’t a unanimous decision, but still good,” Musk wrote.
Immigration advocacy nonprofits, meanwhile, have interpreted the court’s ruling as a call to action. Texas Impact, an interfaith organization that has been vocally opposed to Gov. Abbott’s stance on immigration, expressed “grave concern” and condemned the court system for all the legal whiplash.“The Supreme Court’s decision to allow enforcement of SB4 while it is still under appeal in a lower court will lead to additional confusion and fear regardless of the eventual lower court outcome,” wrote Executive Director Bee Moorhead.
Democrat Texas State Senator César Blanco, who represents the Big Bend in the state legislature, voiced his opposition. “The Supreme Court’s decision to uphold Texas’ enforcement of Senate Bill 4 is deeply troubling. Senate Bill 4 does nothing to solve the humanitarian crisis at our border and instead subjects Latinos who live and pay taxes in Texas to unjust profiling.”
The ACLU of Texas continued its campaign of educating people about their rights under the law while continuing its legal battle against the state. “We won’t back down until this extreme anti-immigrant law is struck down for good,” the organization tweeted.
At press time, lawyers for the state and federal governments were headed to Austin for oral arguments; the Fifth Circuit will decide soon whether or not a measure blocking the law can stay in place while litigation continues.