The immigration debate entered uncharted territory Tuesday after the Supreme Court allowed Texas’ enforcement law to take effect, giving the state the power to arrest and prosecute illegal immigrants under its own laws.
The justices placed a hold on the law but lifted that blockade in a 6-3 decision that instantly drew new battle lines in the fight over the border.
Texas’ supporters said the state now has serious tools to plug the gaps created by President Biden’s lax approach to border security, which has invited unprecedented chaos.
“This is clearly a positive development,” Gov. Greg Abbott said on social media.
“Our immigration law, SB4, is now in effect,” said Texas Attorney General Ken Paxton.
Opponents called the law “an invitation to cruelty and chaos.”
“SB4 will empower vigilantes and turbocharge the relentless anti-immigrant scapegoating that has been central to the political strategy of Texas Republicans,” said Vanessa Cardenas, executive director of America’s Voice.
Mexico’s foreign ministry said it will refuse to take back any migrants Texas tries to deport at the state level.
“Mexico categorically rejects any measure that allows state or local authorities to exercise immigration control, and to arrest and return nationals or foreigners to Mexican territory,” the ministry said.
The issue before the justices was a legal question about whether a lower appeals court had the authority to issue an “administrative stay” on a lower court injunction, but the implications of that question are huge.
“The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional,” wrote Justice Sonia Sotomayor, one of the three justices who dissented.
The Texas law creates a misdemeanor state penalty for those who sneak across the border and a felony penalty for those who sneak back after being deported. Both those provisions mirror federal law.
The law also created a type of state-run deportation system.
Mr. Abbott has argued that the state has an independent power to protect its citizens, particularly in light of the “invasion” he says the flow of migrants represents. He said the Constitution’s invasion language provides a state with authority.
A U.S. district judge initially ruled against Texas and issued an injunction blocking the law from taking effect. The judge ruled that Texas trampled on federal prerogatives and unconstitutionally interfered with how the Biden administration wanted to manage the border.
The 5th U.S. Circuit Court of Appeals issued a stay of that injunction and is speeding the case through its docket. It has scheduled oral argument for early next month.
It was that stay that was the issue before the justices. They issued their own stay of the stay earlier this month.
The ruling Tuesday lifted the justices’ stay.
Justice Amy Coney Barrett, explaining her part in the ruling, said the Supreme Court has never been in the business of policing administrative stays but the issue may soon come back to the justices.
“The time may come, in this case or another, when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. But at this juncture, in this case, that conclusion would be premature,” Justice Barrett wrote.
Late Tuesday, the 5th Circuit appeals court scheduled a snap hearing for Wednesday on the question of a stay pending appeal.
The dissenting justices said too much is riding on Texas’ law to allow it to take effect, even for a short time.
“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” Justice Sotomayor wrote in a dissent joined by Justice Ketanji Brown Jackson.
Justice Elena Kagan wrote a separate dissent saying the 5th Circuit’s administrative stay was “unreasoned” and deserved a blockage by the high court.
White House press secretary Karine Jean-Pierre lashed out at the decision and called the Texas law “harmful and unconstitutional.”
“SB4 is just another example of Republican officials politicizing the border while blocking real solutions,” she said. “We remained focused on delivering the significant policy changes and resources we need to secure the border.”
Rep. Tony Gonzalez, Texas Republican, said the state had to act.
“I represent over 800 miles of the southern border. We are tired of the chaos, destruction and death this border crisis has caused,” he said. “SB4 will give Texas the ability to enforce against illegal immigration and do what President Biden refuses to do.”
The law imposes a maximum six-month jail sentence on anyone caught illegally entering the country. Repeat offenders could get a two-year sentence. Both of those track with the federal penalties. A judge could drop the charges if the migrant agrees to be sent back to Mexico.
While aimed at new illegal immigrants, the law’s language appears to cover anyone authorities have reason to believe came from Mexico to Texas regardless of when they entered. It does have prohibitions on arresting targets at locations such as hospitals and houses of worship.
Immigration activists say the law would deny illegal immigrants a chance to seek asylum — a valid reason to fight deportation — from federal officials.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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