Texas Immigration Law Updates

April 04, 2024
Aaron Lawee

The Fifth Circuit Court of Appeals just blocked the draconian Texas immigration law, known as SB4, from going into effect. This temporarily ends the confusion about whether the law can be enforced while its constitutionality is decided.

What is the Texas immigration law?

SB4 was signed into law in December of 2023 and was set to go into effect on March 5, 2024. The law would have effectively allowed Texas to enforce US immigration laws on its own, a radical and controversial departure from the norm. The Supreme Court has consistently recognized that immigration law falls within the purview of the federal government, not individual state governments. This is generally because our country must have a consistent immigration policy throughout the different states, and because the federal government is tasked with managing foreign relations with other countries.

Texas sought to change that balance by choosing to enforce immigration laws on its own. For example, SB4 would have made it a state crime to enter the United States illegally. More drastically, the law would have empowered state judges to order undocumented immigrants to depart the United States or face up to 20 years in jail for immigration violations. It also would make it a crime to be present in Texas after having been deported or denied admission to the United States. This greatly impacted our relationship with Mexico, as people from other countries could have been forced to go to Mexico. It appears that having a pending asylum application would not prevent a state judge from ordering an undocumented immigrant to depart the US or face jail time for having entered the US illegally, even for the purpose of claiming asylum. The supposed justification for this law was because the Biden administration had failed to enforce the nation’s immigration laws and “control the border.” However, that reasoning was simply untrue.

The Supreme Court had held in 2012 that “The Government of the United States has broad, undoubted power over the subject of immigration and the status of [noncitizens].” Arizona v. United States, 567 U. S. 387, 394 (2012). However, the state of Texas seemed to hope that with the three Trump appointees in place, the court might allow their law to go through.

What is the Status of the Texas Law Now:

For the moment, the law cannot go into effect, but that may certainly change. No judge has made a final determination as to whether the law is constitutional or conflicts with federal law. The legal decisions thus far have solely focused on whether SB4 can take effect while the judges make a final determination as to whether SB4 is legal. Below is a timeline of the legal rulings that have transpired:

  1. The law was signed in December of 2023 and set to take effect on March 5, 2024
  2. After the law was signed, the United States, the County of El Paso, and two private organizations filed a lawsuit to stop the law from going into effect.
  3. On February 29, 2024, District Judge David Ezra stopped the law from going into effect, finding that it likely conflicted with both federal law and the U.S. constitution. In essence, he determined that SB4 was likely unlawful, and that it could not go into effect while the court proceedings were playing out.
  4. The State of Texas then appealed that decision to the 5th Circuit Court of appeals.
  5. The 5th Circuit briefly put the law on hold, but then decided to allow it to go into effect unless the Supreme Court reversed it.
  6. On March 19, the Supreme Court allowed the law to go into effect, over a very strong dissent by the three liberal justices.
  7. Later that day, the 5th Circuit decided to put the law on hold again.

Thus, right now we found ourselves back were we were on February 29, when Judge Ezra placed the law on hold. He will then continue to hold hearings to make a final determination about the law’s constitutionality. Regardless of his decision, we expect that one side or the other will appeal it.

This conflict highlights the tragic anti-immigrant sentiments that are rampant in certain states, and MMH advises everyone to exercise caution when visiting certain states that have passed laws targeting immigrants.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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