The U.S. Court of Appeals for the Fifth Circuit heard arguments on March 20 over whether to temporarily halt Texas’s controversial immigration enforcement law before the circuit tackles it more substantively at a later date.
The three-judge panel appeared somewhat divided during arguments from Texas Solicitor General Aaron Nielson, the Justice Department (DOJ), and the American Civil Liberties Union.
Judge Irma Carillo Ramirez, an appointee of President Joe Biden, didn’t speak, but Chief Judge Priscilla Richman seemed more skeptical of the Texas law than Judge Andrew Oldham. Judge Oldham, an appointee of former President Donald Trump, dissented from a March 19 decision by Judges Richman and Ramirez to effectively block the law.
Federal vs. State Authority
Judges Richman and Oldham asked questions about how much power states had over immigration enforcement.
“This entire scheme is exactly what the Supreme Court warned against,” a DOJ lawyer said, according to The New York Times.
Judge Oldham, at one point, asked the DOJ about the extent to which states could act on immigration enforcement.
“Is there anything a state can just do because it thinks it’s a good matter for the people of the state of Texas, outside of what Congress has allowed them to do explicitly in those two statutes you referenced?” he asked.
The DOJ had cited two provisions of federal law—8 U.S. Code Sections 1252c and 1357—identifying areas of state action in immigration enforcement.
Chief Judge Richman indicated that Texas could achieve similar ends without SB4.
“You’ve got trespass laws,” she said after Mr. Nielson noted that Texas did arrest people who came across the border and trespassed on state property.
He noted that if the trespassing prohibition were lawful, then it wasn’t clear why this extra provision would be unlawful.
Chief Judge Richman also questioned the law’s implementation.
Complicated Timeline
The hearing followed weeks of back-and-forth between the U.S. Supreme Court and the lower courts. A district judge had granted an injunction against Texas’s law, but that injunction was later halted by appellate judges in the Fifth Circuit.Those judges issued an administrative stay on the injunction but also put that stay on hold so that the federal government could ask the U.S. Supreme Court for intervention. Justice Samuel Alito, the justice hearing requests from the Fifth Circuit, received emergency applications regarding the administrative stay on the injunction and issued multiple orders, including his own administrative stays that were ultimately extended until the rest of the Supreme Court voted.
On March 19, a majority of the justices refused to grant the emergency applications, but a concurrence from Justice Amy Coney Barrett appeared to urge the Fifth Circuit to act quickly. Afterward, the panel of Judges Richman, Oldham, and Ramirez issued an order setting oral argument for March 20. Later that night, it issued another order lifting the administrative stay on the district court’s injunction, once again halting Texas’s law.
The hearing on March 20 came in relation to the judges’ decision on whether to keep the law on hold before it addressed the substance of Texas’s appeal of the lower court injunction, which is preliminary. That appeal is set for oral argument on April 3. It seems likely that the case will ultimately be decided by the Supreme Court, but there could be an en banc hearing within the circuit before it reaches the nation’s highest court.
During the March 20 hearing, the DOJ asked that the appeals court deny Texas’s request for a stay of the injunction pending appeal. If the court were to issue a stay, the DOJ suggested that it delay the effectiveness of that stay for potentially additional Supreme Court proceedings.
“In particular, we would suggest that the court could give the solicitor general three business days to determine whether to go to the Supreme Court, and then if the solicitor general elects to do so, to hold off on the effectiveness of its stay until the Supreme Court rules on that application,” a DOJ attorney said.
