Texas SB4 could upend 100 years of US immigration law by empowering states

Immigration enforcement at America’s southern border teetered on the edge of an uncertain new era Tuesday, as a flurry of rulings from federal courts grappled with whether a controversial Texas law can temporarily take effect.

Texas Senate Bill 4, or SB4 for short, makes it a state crime to enter Texas illegally. Amid court challenges from the Biden administration and others, however, the state has never been able to enforce the law. As recently as early Monday evening, Justice Samuel Alito extended a stay preventing SB4 from going into effect.

But less than 24 hours later, an unsigned ruling from the full Supreme Court effectively reversed that order. If that wasn’t enough whiplash, hours later, a federal appeals court announced it would be hearing oral arguments concerning a more permanent stay of SB4. As quickly as the law could be enforced, it now couldn’t again. 

The actual constitutionality of SB4 may not be decided for months. Yet the legal turmoil of the past three days has threatened to upend over a century of U.S. immigration law, while triggering confusion and panic across the Lone Star State. 

There are signs of a ripple effect, too. Iowa lawmakers on Tuesday passed a bill that also challenges federal immigration authority, creating a state crime for illegal reentry. 

If the Texas law goes into effect, “that is a huge change in the way our legal system works,” says Denise Gilman, co-director of the Immigration Clinic at the University of Texas at Austin School of Law.

“It just seems that at a minimum what is due is serious consideration on the merits of the legal issues,” she adds. “It shouldn’t be that you don’t know from one hour to the next if you will be subject to deportation by the state of Texas.”

Expanded immigration authority 

SB4 would give Texas immigration powers that no other state government has had in over a century. Under the law, state law enforcement officers can arrest people they suspect of entering Texas illegally from a foreign nation, and state judges have the authority to initiate deportations to Mexico.

Courts have previously found that immigration enforcement is a federal, not state, authority. Republican-led Texas over the past three years has stepped up border enforcement, including trespassing arrests of migrants, while arguing the Biden administration has neglected to curb record-high illegal migration. In the past two fiscal years, U.S. Border Patrol encountered migrants between ports of entry along the southern border more than 2 million times each of those years. 

“Know this: What they have stayed is the Texas enforcement of SB4,” said Gov. Greg Abbott on Tuesday during a previously scheduled speech in Austin. “We will continue to use our arrest authority and arrest people coming across the border illegally.”

Court challenges to the new Texas law were inevitable, and to date, three different federal courts have issued rulings on SB4. But no court has yet to rule definitively on the law’s constitutionality.

Unpacking the legal whiplash 

Instead, a month of legal challenges to the law has revolved around the procedural question of whether SB4 can be enforced while federal courts weigh the law’s constitutionality.

In February, a district court judge in Austin said SB4 is likely unconstitutional and blocked it from taking effect. Texas immediately appealed the ruling, and a panel of judges on the U.S. Court of Appeals for the Fifth Circuit reversed it.

Days later, Supreme Court Justice Samuel Alito – who, as the circuit justice for the Fifth Circuit, handles all procedural questions arising from that court – stayed the appeals court’s ruling. SB4 was, again, temporarily blocked from taking effect.

But the Fifth Circuit’s handling of the case has been unusual. In reversing the district court’s ruling, the panel issued an administrative stay that let Texas enforce SB4. An administrative stay is often limited to a short period of time, usually a few days. But in this case, the stay is likely to be in place until the panel hears arguments on the merits – a month later in early April, says Professor Gilman.

The Supreme Court generally defers to lower court decisions in procedural matters like this. Because its ruling was an unsigned order, it’s unclear what rationale the court used for its ruling Tuesday allowing SB4 to go into effect.

But it came with a jargon-filled but biting concurrence from Justice Amy Coney Barrett. The case reached the high court “in an unusual posture,” she wrote. While the justices still chose to defer to the appeals court, she added that “the Fifth Circuit should be the first mover.” If the lower court did not act soon to issue a more permanent order, she continued, the Biden administration “may return to this court soon.”

Hours later, a Fifth Circuit panel lifted the administrative stay and scheduled a virtual oral argument for the next morning to consider a more permanent stay. While there was some discussion of SB4’s legal merits during the one-hour argument, Professor Gilman expects the April 3 hearing on the district court’s ruling to feature much more. 

“One of things you have to analyze [at that point] is if the law is likely to be found unconstitutional,” she says.

A court cannot make that determination without reaching some conclusion, albeit a provisional one, on the legality of the law. But even that hearing next month will be a procedural one, she says.

“The bottom line question here is, should this law be allowed to go into effect” while courts spend the next several months deciding if SB4 is constitutional or not, she adds. Whether it’s the Fifth Circuit or the Supreme Court who does it, she continues, the law “should be halted, so as not to change a whole legal regime leading to the deportation and arrest of migrants based on a law that hasn’t really been examined by the courts.”

Whatever the decision is, it will likely be appealed to the Supreme Court. With a full docket already this term, the justices likely wouldn’t decide SB4’s future until the next term, starting in October. And as this uncertainty lingers, the legal landscape continues to shift. Iowa Gov. Kim Reynolds says she plans to sign the law passed Tuesday, which allows state law enforcement to arrest immigrants who were previously deported or denied U.S. entry.

“A nightmare come true” for one resident 

Caught in the eye of this storm of legal papers and procedures have been those SB4 stands to affect most.

Foremost among them are Texans with mixed-status families. For one medical assistant in Austin, who declined to have her name published for fear of legal consequences, it has been a month of agonizing uncertainty, punctuated by the emotional roller coaster of the past three days. 

She was brought to the United States from Mexico as a baby, but in 2015 gained Deferred Action for Childhood Arrivals status, meaning she would not be subject to SB4. But her parents are unauthorized immigrants, and for the past month, she says, they’ve been afraid that their family could be quickly broken up if SB4 goes into effect.

Even though it only ended up being a few hours, that time with SB4 in effect “was a nightmare come true,” she says.

“So many scenarios went through my head,” she adds. “Thinking about being separated from my parents, having to explain to [my] young kids what might happen [was] so hard.”

Speaking on Wednesday morning, she says, “There’s happiness, a little bit, because it was [stayed]. But there’s still uncertainty. ... It’s just confusing, and it’s stressful. I just wish they would say if it’s unconstitutional or it’s not.”  

All month, her family has debated leaving Texas, and for a few hours on Tuesday, those thoughts began morphing toward concrete action. They thought about moving to Louisiana, but ultimately decided against it. She and her siblings have jobs, and their children are settled in school. Moving to a new state would just be too much disruption. Instead, she and her siblings are planning to do all the family’s errands and chores so their parents don’t have to be outside too often.

“There’s really nothing we can do but wait,” she says. “The best option right now is for [us] to continue working and helping my parents.”

On-the-ground realities 

Exactly how SB4 would be enforced on the ground is unclear. Notably, Mexico’s Ministry of Foreign Affairs on Tuesday said the country would not accept individuals deported under the law.

Meanwhile, for law enforcement in Texas, the judicial back and forth has been a prelude to, essentially, a return to business as usual. Police departments in major cities like Houston, Austin, and Fort Worth said Tuesday that they will continue to focus on top public safety priorities, which don’t include immigration enforcement.

“Although we will always follow the law, the primary responsibility for immigration enforcement and border protection should be left to our federal and state partners,” Fort Worth Police Chief Neil Noakes said in a video released in English and Spanish.

The speaker of the Texas House of Representatives pushed back against that approach on X, formerly Twitter: “Any local law enforcement agency that refuses to enforce Senate Bill 4 is abandoning their sworn duty to uphold the rule of law.”

There is also an expectation among many in Texas law enforcement that the statute would mostly be enforced in border counties.

“Those counties are already forward-leaning on border security and crime in general,” says Skylor Hearn, executive director of the Sheriffs’ Association of Texas. SB4 is “really not going to fundamentally change how sheriffs do their business.”

“It’s as good a [border security] measure as Texas, as a state, probably can provide. But it doesn’t secure the border,” he continues. “We are still dependent on the federal government to step up and do its job.” 

The legal uncertainty around SB4 “feels like a roller coaster,” says Professor Gilman. “It is a roller coaster, [and] the stakes are very high.”