Texas was back before a panel of federal judges Wednesday to defend its on-again-off-again border law, telling the court the state has marched right up to the line of what’s legal in dealing with illegal immigrants but has not crossed over it.
The three-judge panel of the 5th U.S. Circuit Court of Appeals has already put the law on hold while the case is pending, and it wasn’t clear that Texas made much headway in getting the judges to change their initial conclusion that the state is trampling on federal powers.
But Texas Solicitor General Aaron Nielson urged the court to take a new look, saying there’s been a lot of confusion about SB4, the law that creates state penalties for illegal entry into the country and that purports to create a state-run deportation system.
In fact, Mr. Nielson said, the state doesn’t actually deport anyone but instead turns them over to U.S. border authorities to handle.
“To be fair, maybe Texas went too far, and that’s the question the court’s going to have to decide. But that’s the context in which we are here,” he said. “Texas has looked at the Supreme Court precedent and the laws Congress has enacted and has tried to develop a law that goes up to the edge and no further.”
The problem for all sides is that the law hasn’t taken effect yet, and nobody is quite sure how it would play out in practice.
A federal district court ruled that the law was likely fully preempted by federal prerogatives and issued a total injunction. The appeals court has tentatively upheld that ruling, but the judges struggled Wednesday with key questions about how the law would operate — particularly the deportation provision.
Mr. Nielson described the law as less of a deportation process and more of a transfer to federal authorities. If someone is arrested and goes before a state judge and agrees to an order of removal they are to be taken to a border crossing and turned over to Customs and Border Protection for a final decision on ouster.
“You’re saying the United States, when someone wants to leave and cross into the Mexican border, the United States gets to decide whether they get to?” wondered Judge Priscilla Richman, who is seen as the key swing vote on the three-judge panel.
In her previous ruling icing the law, she said Texas appeared to block out the federal government’s ability to consider asylum claims and other federal defenses against deportation.
Justice Department lawyer Daniel Tenny said Texas was trying to rewrite its law in front of the judges by claiming it didn’t do what the statute’s text seemed to suggest.
But Mr. Nielson said he’s been consistent from the start in saying Texas can’t actually deport anyone.
“It’s portrayed as Texas is ourself just flying people off to some other place and that’s not accurate,” he said. “People are taken to the port of entry, and the United States controls the port of entry.”
He admitted it’s unlikely any migrants arrested by Texas would immediately be ousted. He said the value in Texas’s deportation provision is chiefly in flagging illegal immigrants the feds might have missed, so they can be given immigration court summonses.
He said the law applies to people a Texas police officer has suspicion entered illegally from Mexico. Usually, that would be when they spotted someone making the crossing.
Under the law, they could be charged with a misdemeanor of illegal entry. A second offense could be charged with illegal re-entry. Both provisions were written to match the federal law.
Mr. Nielson said Texas has heard the Biden administration say it lacks resources to plug all the gaps at the border, so all the state is trying to do is offer that help.
Judge Richman was skeptical, pointing out the administration is suing to stop the state.
“Why hasn’t the federal government taken Texas up on the generous offer?” Judge Richman, a Bush appointee to the court, asked Mr. Nielson.
Also on the panel are Judge Irma Carrillo Ramirez, a Biden pick, and Judge Andrew S. Oldham, a Trump appointee.
Judge Oldham dissented from the court’s previous order putting the state law on hold, and he peppered Mr. Tenny on Wednesday with questions. He said the government was asking the court to break new legal ground with a total injunction of a state immigration law.
He said for the Justice Department to prevail in a total injunction it needs to show that every possible use of Texas’s law is illegal or unconstitutional, and he doubted the Biden administration has met that burden.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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