Fifth Circuit keeps Texas's S.B. 4 blocked, stating it "appears to run headlong into federal law"

Chief Judge Priscilla Richman detailed how Texas's criminal immigration law conflicts with federal law, saying it's likely a "quintessential" case for federal preemption.

Texas’s new immigration law creating Texas crimes of “illegal entry” and “reentry” and setting forth a process for removal of people convicted of those state laws will remain blocked for now, the U.S. Court of Appeals for the Fifth Circuit ruled on Tuesday night in a decision holding that Texas’s S.B. 4 is likely preempted by federal law on multiple grounds.

“The Texas laws at issue permit state authorities to prosecute an individual for being unlawfully present and remove individuals who are unlawfully present or removable, without any consultation or cooperation with the Attorney General of the United States,” Chief Judge Priscilla Richman, a George W. Bush appointee, wrote for the court’s 2-1 majority keeping S.B. 4 on hold.

The decision — technically, denying Texas’s request for a stay of the district court’s February injunction of the law during the state’s appeal — followed last week’s arguments and is the latest ruling in the quick-moving case, but the overnight opinion was significant for two reasons.

It is the first ruling of substance analyzing S.B. 4 from an appeals court, which is good whenever courts take actions — but particularly when those rulings are affecting the enforcement of national and state laws. And, second, this is same panel of judges that will be hearing the merits of the S.B. 4 next week, meaning we have a fairly good idea that the same outcome will likely result from the full appeal.

The immediate question is whether Texas seeks further review, from the full Fifth Circuit en banc or from the U.S. Supreme Court, on its stay pending appeal request, or whether the parties wait for the April 3 arguments on Texas’s appeal of the preliminary injunction before taking any further action.

For now, though, Texas’s S.B. 4 remains blocked and will remain blocked for the duration of the Fifth Circuit appeal.

Richman held in her 50-page opinion that the stay was denied primarily because Texas is not likely to win in its appeal due to the fact that, the court concluded, Texas’s law is likely preempted by federal law under the Supremacy Clause. She was joined in the majority by Judge Irma Carrillo Ramirez, a Biden appointee.

This was not, Richman made clear for the pair, a close case. There are two types of preemption — field preemption, which happens when Congress has made clear that an area of law “must be regulated by its exclusive governance,” and conflict preemption, which happens when it is “impossible” to follow both federal and state laws or the state law “stands as an obstacle” to the federal objectives. Here, Richman concluded, S.B. 4 is likely barred by both types of preemption.

Judge Andy Oldham, a Trump appointee, dissented, arguing in part that the federal courts should not have issued such a broad ruling and should have allowed state officials to first enact and interpret the law before the federal courts stepped in.

“The people of Texas are entitled to the benefit of state law right up to the point where any particular application of it offends the Supremacy Clause,” Oldham wrote in his 71-page dissent. “And Texas state officials should be trusted at least to try sorting those constitutional applications from any potentially unconstitutional ones.“

Of course, the whole point of Richman’s opinion was to explain how preemption law addresses this, both in general and regarding immigration law specifically. Richman accordingly expressed significant frustration with Oldham’s dissent — if not Oldham possibly himself.

In a concluding section of her opinion for the majority, Richman summarized several areas where she and Ramirez “part company” with Oldham’s dissent and ended the section rather abruptly:

“There is much more in the dissenting opinion with which we disagree. But in the interest of deciding the motion for a stay in a timely manner, we forego further discussion.”

The bulk of Richman’s extensive opinion, though, is about preemption itself and makes a strong case for why Texas’s law is clearly preempted — albeit written about Texas’s “likely” success in light of the procedural posture of the case, a stay request on a preliminary injunction appeal — under both field and conflict preemption principles.

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Field preemption

“For nearly 150 years,” Richman wrote in discussing field preemption, “the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power.” The specifics of applying field preemption considerations to S.B. 4 was made relatively easy given the Supreme Court’s 2012 decision in Arizona v. United States, which Richman wrote “provides considerable guidance as to whether Texas is likely to succeed on the merits of the preemption issue.”

Richman devotes significant time and space in her opinion to describing the many ways in which Texas’s S.B. 4 differs from federal law, either by restricting the federal rights of those noncitizens who Texas’s law would criminalize and set forth their removal or by restricting the role and powers of federal officials to enforce federal immigration law relating to entry and removal.

Under S.B. 4, Richman wrote, “a defendant may be removed before federal proceedings that would permit her to remain in the United States lawfully have been initiated or concluded.“ Of the ways the Texas law would diminish federal power, she wrote at one point, “It is evident that the Texas entry and removal laws also significantly impair the exercise of discretion by federal immigration officials.”

Richman went on to detail the federal foreign relations interests involved, as well as other federal laws addressing removal, concluding:

Ultimately, and describing how the Supreme Court, Congress, and the federal executive branch have analyzed questions relating to decisions involving removal decisions, Richman concluded, “This is likely quintessential field preemption.”

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Conflict preemption

In describing why S.B. 4 would also likely be blocked under conflict preemption, Richman, looking at “obstacle” analysis, concluded that both the entry and removal provisions are likely conflict preempted because they would put up an obstacle to the accomplishment of federal laws’ goals. In addition to reiterating the conflicts between the federal and state provisions described in the field preemption section of her decision, Richman detailed at one point quite succinctly how the S.B. 4 would stand as an obstacle to the Immigration and Nationality Act:

The removal portions of S.B. 4 likely conflict for a similar reason, she wrote:

The removal provision also appears to conflict with federal law because, again, the provision authorizes Texas state judges and magistrate judges to remove noncitizens from the United States without notice to or consent from the federal government. This appears to run headlong into federal law.

Oldham’s lengthy dissent argued that the U.S. shouldn’t have been able to sue the state and that the remedy is inappropriate, but also, in an argument that Richman clearly couldn’t believe, asserted that the Texas illegal entry law “says nothing about alien registration and has no impact whatsoever on which aliens Congress chooses to admit, the terms under which Congress chooses to admit them, or any part of the INA even tangentially related to admission.”

Responding to that, Richman described how S.B. 4 blocks noncitizens’ ability to seek relief from the U.S. Attorney General that is explicitly allowed under federal law.

“The dissenting opinion’s assertion that S.B. 4 ‘has no impact whatsoever on which aliens Congress chooses to admit’ is simply incorrect,” Richman wrote.