Appeals court considers revival of Texas’ migrant law, which is now on hold

A three-judge panel of the federal appeals court heard arguments Wednesday in a bitter legal fight between Governor Greg Abbott and the Biden administration over Texas’ new migrant arrest law, highlighting a dizzying array of legal developments in recent years. 24 Hours highlighted that migrants and many law enforcement officers in Texas are confused and unsure.

The hearing had been hastily called the day before by the U.S. Court of Appeals for the Fifth Circuit, prompting attorneys to prepare for a hearing that could determine whether one of the nation’s most aggressive state efforts to improve security at the U.S.-Mexico border should be enforced. may become law.

Two judges spoke frequently during the hearing, and their comments suggested there was division in the jury.

The court’s chief judge, Priscilla Richman, appeared skeptical of the Texas law, particularly the provision that allows state courts to send migrants back to Mexico. While questioning Aaron Nielson, the attorney general of Texas, she read from a 2012 Supreme Court case from Arizona that affirmed the federal government’s supremacy in immigration matters.

“It seems to me that this statute washes that away,” Judge Richman said of the Texas law.

The other judge to speak, Andrew S. Oldham, Mr. Abbott’s former general counsel, peppered the Justice Department lawyer with questions and seemed likely to side with Texas. Mr. Oldham dissented in a Fifth Circuit ruling Tuesday night, effectively putting the law back on hold hours after the U.S. Supreme Court allowed it to take effect.

Judge Irma Carrillo Ramirez, who was nominated by President Biden and confirmed last year, did not appear to speak during the hearing, which was held via video conference and streamed live on audio to the public.

The appeals court judges considered a request from Texas to let the law take effect while its constitutionality is challenged in court. A district court originally blocked the law in February. The appeals court judges did not rule during Wednesday’s hearing.

In a wide-ranging speech in Austin shortly after the hearing, Mr. Abbott, who has said he expects the Supreme Court to ultimately rule on the law’s constitutionality, suggested that the statute was designed to uphold Supreme Court precedent on the issue of the constitution. 2012 case, Arizona v. United States, decided 5-3.

“We found ways to try to make that law consistent” with the dissent that the late Justice Antonin Scalia wrote in the Arizona case: said Mr. Abbott. Justice Scalia had suggested that Arizona take action did not violate federal law but simply added state penalties to help enforce existing federal restrictions.

The hearing followed a rapid series of back-and-forth court rulings Tuesday, including a Supreme Court procedural ruling that allowed the law to take effect briefly for several hours. Then on Tuesday evening, the appeals court panel blocked the law again, ruling in a 2-to-1 decision.

The confusion continued into Wednesday and extended to state troopers, local police departments and elected sheriffs, some of whom were eager to implement the law, known as Senate Bill 4.

The law makes it a crime to enter Texas from another country anywhere other than through a legal port of entry, punishable by jail time, a deportation order from a state court judge, or both. It would apply not only to migrants at the border, but also to people in Texas towns hundreds of miles away who entered the country without permission as early as two years ago.

Brad Coe, the sheriff in Kinney County along the Texas border, said he woke up determined to hear directly from Mr. Abbott what was going on with the law. “I’m on my way to his office now,” he said Wednesday morning.

Along the Rio Grande, a group of about two dozen migrants in Ciudad Juárez, Mexico, kept a close eye on their phones for information about the new law as they gathered at the Paso del Norte Bridge across from El Paso. Yazmine Marquez, a 34-year-old Venezuelan woman, waited for an immigration hearing in El Paso later Wednesday.

“They have their reasons,” she said of Texas leaders who tried to enact the law. “Not all migrants try to enter for good reasons. But most of us are trying to enter the United States for work and a better future.”

Mr. Abbott and other Texas officials have argued that the law is a necessary response to record numbers of border crossings, sometimes flooding South Texas cities with hundreds of new migrants a day — and to what they say is the federal government’s inability to enforce the country’s existing border security laws.

“Texas has the right to defend itself,” Mr. Nielson, the attorney general of Texas, said during his opening presentation on Wednesday. He argued that the state law mirrored federal statutes that already make it a crime to enter the country without authorization.

“What we’re trying to do is make sure that Congress, which sets the nation’s immigration laws, makes sure those laws are enforced,” he said. “And to the extent that we cannot enforce federal law, which we do not claim to do,” he added, “we will enforce our own laws.”

But Mr. Nielson struggled with hypothetical questions about the law. Judge Richman raised the case of a migrant who may have crossed from Mexico into Arizona without permission and years later went to Texas: Could that person be arrested under the law?

“I don’t know the answer,” Mr. Nielson said. “Maybe?”

The federal government has argued, and did so at Wednesday’s hearing, that the U.S. Constitution and decades of legal precedent have made immigration enforcement a federal responsibility.

Daniel Tenny, a lawyer for the U.S. Department of Justice, said the Texas law conflicted with federal law and Supreme Court precedent, particularly a 2012 Arizona v. United States decision, decided when Arizona tried to pass an immigration enforcement law. .

He said the court had simply upheld a system of federal jurisdiction over immigration and borders “that has been in place for 150 years.”

Legal experts following the hearing said the panel appeared inclined to leave the lower court’s order in place while the appeals process continues, meaning the law would remain on hold.

“The bottom line is that the court will most likely deny Texas the stay they asked for, which means SB 4 will remain blocked,” said Raffi Melkonian, a federal appeals attorney based in Houston who regularly appears in court. Fifth Circuit.

The same panel of judges will hear more extensive arguments on April 3 on the constitutionality of the law and Texas’ appeal of the ban. Mr. Melkonian said that, based on Wednesday’s arguments, it also did not appear that Texas would be on good footing for that hearing.

But the Fifth Circuit, based in New Orleans, has developed a reputation for tough conservatism. Many of the justices adhere to “originalism,” which attempts to interpret the Constitution through the lens of its 18th-century authors.

The court’s composition was dramatically shaped by President Donald J. Trump, who nominated six of the seventeen justices, including Mr. Oldham. Six of the others were nominated by other Republican presidents.

Both sides would likely appeal any ruling, and Mr. Abbott has already said he expects the fight over the law to reach the Supreme Court.

The Supreme Court weighed in on the case on Tuesday, but did so on procedural grounds and did not address the broader issue of the law’s constitutionality. It moved the case to the Fifth Circuit, where another group of judges issued a procedural pause in the lower court’s order, allowing the Supreme Court to intervene.

When the Supreme Court threw it back and declined to order a further delay, the law was still in effect for a few hours Tuesday afternoon and evening.

Some Texas officials celebrated. Attorney General Ken Paxton called it a “huge victory.” But others, like Mr. Abbott, were more muted. “A positive development,” he called it in a statement.

In a concurring opinion written by Judge Amy Coney Barrett and joined by Judge Brett M. Kavanaugh, the court urged the Fifth Circuit to take swift action. That appeared to be the impetus for the appeals court panel’s announcement of Wednesday’s oral arguments, and for a separate order lifting their earlier procedural pause — blocking the law again.

As the hearing took place Wednesday, President Andrés Manuel López Obrador of Mexico attacked the Texas law at a news conference, calling it “draconian” and “completely dehumanizing.” The Mexican government has said it would legally refuse deportations by Texas officials.

“It’s as if the governor of Tamaulipas were to enforce a law against Texans visiting Mexico,” he said, referring to the state in Mexico.

If the law were to go into effect, Texas would be the only state known to deputize local authorities to arrest people suspected of entering the country illegally. Legal experts said a ruling in the state’s favor could encourage other Republican-led states to enact similar laws. On Tuesday, lawmakers in Iowa passed their own similar bill.

Reporting was contributed by Edgar Sandoval, Reyes Mata III, Mattathias Schwartz, David Montgomery And Emiliano Rodriguez Mega.