In the process, the court also rejected Texas’s argument that illegal migration and drug smuggling qualify as “invasion.”
Earlier today, the US Court of Appeals for the Fifth Circuit ruled against Texas in a case where the federal government challenged the legality of the state’s SB 4 immigration law. SB 4 is a new state law that criminalizes unauthorized migration, expands state law enforcement officials’ powers to detain undocumented migrants, and gives Texas courts the power to order removal of migrants convicted under the law.
Today’s decision is not a final ruling on the merits. Technically, all it does is uphold the district court’s preliminary injunction blocking enforcement of the law until the courts reach a final decision in the case. However, one of the factors courts assess in deciding whether a preliminary injunction is warranted is “likelihood of success on the merits.” And in analyzing that factor, the judges made it clear they think SB 4 is in fact illegal, and Texas deserves to lose.
Most of Chief Judge Priscilla Richman’s majority opinion in the Fifth Circuit focuses on whether SB 4 is preempted by federal immigration law. For example, she concludes that the law’s provisions on detention and removal conflict with federal laws granting many undocumented migrants the right to remain in the United States while they apply for asylum.
But the majority also rejected Texas’s argument that the state has the power to enact SB 4 because illegal migration and cross-border drug smuggling qualify as an “invasion:”
Texas asserts that Article I, § 10 of the Constitution (the State War Clause) permits
some applications of S. B. 4. The State War Clause provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Specifically, Texas contends that, at a minimum, S. B. 4’s application to transnational cartel members is a constitutionally authorized response to an “invasion.
