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Texas can finally begin to enforce its new state law against illegal immigration — but not after a head-spinning 24 hours. Late yesterday, CBS News reported that the Supreme Court allowed a stay on enforcement of SB4 to lapse. Within an hour, the court then reinstated its stay, only more broadly — a signal that the court might look disfavorably on Texas’ arguments.
But just like that, a 6-3 court lifted its stay, this time for good … we think. Maybe!
The Supreme Court on Tuesday gave Texas officials permission to jail and prosecute migrants suspected of crossing the U.S. southern border without authorization, greenlighting the enforcement of a state immigration law known as SB4 that the Biden administration has called unconstitutional.
Denying a request from the Justice Department, the high court allowed the controversial Texas law, one of Gov. Greg Abbott’s signature immigration policies, to take effect while the U.S. Court of Appeals for the 5th Circuit considers the measure’s legality.
Actually, this lifts a stay on another stay. The Fifth Circuit accepted an appeal of a lower-court ruling that rejected the law as an unconstitutional infringement of the Supremacy Clause. They then stayed their own ruling while the Biden administration appealed to the Supreme Court, which extended the stay while it considered the emergency request to vacate the stay. Yesterday, that temporary stay expired, only to have Justice Samuel Alito issue a new stay … on the stay.
Confused? Stay tuned!
At this point, though, the matter looks a little more straightforward. The lower court ruling has been enjoined while the Fifth Circuit reviews Texas’ appeal, and that injunction strongly suggests that the appellate court will rule in Texas’ favor. The apparent 6-3 ruling today strongly suggests that the Supreme Court will look favorably on the matter, for the same reason: courts do not issue injunctions unless the party is likely to prevail at trial and substantial harms will occur without an injunction. Given that Texas seems to have convinced both courts of the necessity of the injunction against the lower court ruling and now have permission to enforce this law, it seems the two courts see Texas as the likely victor in this legal battle.
For now, anyway. And that may be more true about the Fifth Circuit than the Supreme Court anyway, which ended up deciding this on procedural grounds, as you’ll see.
It took a while for the court to publish the opinion correctly, but we do have the reasoning now. And the majority leans heavily on potential harms in its decision to declare Game On for SB4.
