The new law, known as Senate Bill 4, says that police may arrest migrants who are suspected of crossing the border illegally from Mexico into the U.S. and charge them on their first offense. It also gives judges the power to deport individuals to Mexico. It was signed by Governor Greg Abbott back in December and has been subject to litigation, including a lawsuit by the Biden administration that sought to strike it down.
The Biden administration maintains that the law usurps federal authority, stating in their lawsuit: "Texas cannot run its own immigration system. Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations."
However, Texas insisted that the state's new law is simply a mirror of federal law that needed to be enacted on account of the Biden administration's insufficient response at the border.
In court papers, the state of Texas argued: "Texas is the nation’s first-line defense against transnational violence and has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”
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The Supreme Court ruling came in response to an emergency request made by the Biden administration claiming that states do not possess the authority to make immigration-related legislation. The court rejected that request, which meant that the new law could take effect. The ruling came over the dissent of three liberal justices.
However, a panel on the 5th Circuit Court of Appeals ruled in a 2-to-1 vote that the preliminary injunction preventing the state from enforcing the law should be restored.
The unexpected late-night ruling dampened the mood of Texas officials, who had been celebrating the Supreme Court win. Texas Attorney General Ken Paxton had posted on X shortly after the Supreme Court ruling that it was a “huge win,” adding: “As always, it’s my honor to defend Texas and its sovereignty, and to lead us to victory in court.”
How will the law work?
The law’s validity is still in question, but if it does ultimately go into effect, it will allow any type of law enforcement officer to arrest individuals who are suspected of illegally entering the country. Once migrants are in custody, they can agree with a Texas judge's order to leave the country or face prosecution on misdemeanor charges of illegally entering the country. Those who fail to leave could be arrested again on felony charges.
To make the arrest, officers must show that they have probable cause, such as by personally witnessing the individual illegally entering the country or seeing them do so on video. It cannot be enforced against those who are lawfully present in the country, such as those who have been granted asylum.
However, the Mexican government has said that it will not accept the return of migrants from Texas “under any circumstances” and condemned the law, saying it encouraged “the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”
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