Fifth Circuit puts Texas's S.B. 4 immigration law on hold, yet again

The appeals court is next holding a hearing March 20 on whether to keep the law on hold. This flurry of action followed SCOTUS allowing the law to go into effect.

Summary of the procedural complications:

There's a new criminal immigration law passed by Texas, S.B. 4. The Biden administration and organizations sued. A district court issued a preliminary injunction (stopping S.B 4 from being enforced) before it went into effect. Then, the U.S. Court of Appeals for the Fifth Circuit issued an administrative stay of the injunction (which would allow S.B. 4 to go into effect). The Justice Department and organizations went to the U.S. Supreme Court, where Justice Sam Alito issued his own administrative stay of the appeals court’s administrative stay (keeping S.B. 4 on hold) while the Supreme Court considered the Biden administration and organizations’ requests to vacate the administrative stay (and keep S.B. 4 on hold).

All of which brings us to Tuesday — and this story. The Supreme Court denied the requests to vacate the administrative stay on Tuesday (letting S.B. 4 go into effect). Before the end of the night, though, the Fifth Circuit lifted the administrative stay (putting S.B. 4 back on hold).

Next, though, on Wednesday morning, the Fifth Circuit will hold oral arguments on Texas’s request to issue a stay of the injunction pending its appeal. If the Fifth Circuit grants that (which would allow S.B. 4 to go back into effect), expect the Biden administration and organizations to go back to the Supreme Court. If the Fifth Circuit denies that (keeping S.B. 4 on hold), Texas could go to the Supreme Court seeking a stay pending appeal there.

[Update, 4:00 p.m. March 20: A new Law Dork report about this case and the latest developments following the Fifth Circuit oral arguments can be found here.]

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Original article, with updates throughout:

The U.S. Supreme Court’s conservatives allowed Texas’s criminal immigration enforcement law to go into effect on Tuesday afternoon, letting two judges on a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit to alter longstanding federal authority over immigration law on the basis of an unreasoned, one-page “administrative” order.

The Supreme Court announced its decision with its own a two-sentence order that included no majority or even per curiam decision for the court.

[Update, 11:15 p.m. ET: By the end of the night, however, two different Fifth Circuit judges — from the three-judge merits panel that will be hearing Texas’s appeal in the case — issued an order at 9:44 p.m. CT lifting the “administrative stay” and putting the law back on hold for now.

Chief Judge Priscilla Richman, a George W. Bush appointee, and Judge Irma Ramirez, a Biden appointee, voted to lift the stay. Judge Andy Oldham, a Trump appointee, dissented.

The Tuesday night ruling, however, could be short-lived, as the judges earlier Tuesday evening announced that they would be considering Texas’s request for a stay pending appeal at Zoom arguments on Wednesday.]

Among other provisions, the law, S.B. 4, creates a new Texas crime of “illegal entry” and allows for state enforcement of that law, including removal. This, despite the fact that the Supreme Court’s 2012 decision in Arizona v. U.S. struck down similar provisions in an Arizona law.

Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented from the Supreme Court’s order on Tuesday.

Sotomayor was blunt about the effects of her colleagues’ action.

“Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico,” Sotomayor wrote, joined by Jackson. “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.”

Additionally, Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote an opinion concurring in the court’s decision that suggested they could change their mind on the question at a later date. (More on that below.)

We know nothing about what Chief Justice John Roberts or Justices Clarence Thomas, Sam Alito, or Neil Gorsuch think about the decision — because they wrote nothing. (Technically, we don’t even know that all of them were in the majority; we only know that at least three of the four were — along with Kavanaugh and Barrett.)

The order came one day after Justice Sam Alito had belatedly extended a stay keeping the Texas law from going into effect while the justices considered the requests from the Justice Department and from several organizations challenging the law to vacate the Fifth Circuit’s order issuing an “administrative stay” of the district court’s injunction blocking the law. (It’s a procedural morass, but the short of it is that the Fifth Circuit’s order would allow the law to go into effect.)

In asking the justices to keep the law on hold during litigation, the Justice Department lawyers argued that allowing the law to go into effect would “profoundly alter[] the status quo that has existed between the United States and the States in the context of immigration for almost 150 years.”

The Supreme Court ruled, at least for now, against DOJ and the organizations — as well as, in effect, against the 114-page district court ruling enjoining the Texas law — all in favor of allowing the Fifth Circuit to do whatever it wants with the law while it hears the appeal.

In so doing, the court’s conservative majority has, again, has allowed a Texas law that is clearly unconstitutional under the court’s precedents to go into effect.

As with the Supreme Court’s 2021 decision allowing Texas’s S.B. 8 vigilante enforcement abortion ban to go into effect by citing “complex and novel antecedent procedural questions,“ Barrett, joined by Kavanaugh, feigned helplessness on Tuesday because of the “very unusual procedural posture” of the case.

“[I]n an exercise of its docket-management authority, [the Fifth Circuit] issued a temporary administrative stay and deferred the stay motion to a merits panel” hearing Texas’s appeal of the injunction against S.B. 4. “Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted.”

She continued:

The absurd abdication of responsibility here is made all the more clear by the relevant portion of the Fifth Circuit’s order issuing the administrative stay:

Even Judges Edith Brown Clement and Kurt Engelhardt, in the majority on the motions panel, understood that this had more serious implications than mere “docket-management” questions.

To that, Barrett only responded, “It is surprising that both the parties and the panel contemplated from the start that this Court might review an administrative stay.”

But, they did. Despite that, though, Barrett and Kavanaugh refused to join their liberal colleagues in keeping the law on hold while this can be litigated, instead only signaling that, maybe, the Fifth Circuit needs to get its act together.

“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,” Barrett wrote. Ignoring the factual reality that their vote was allowing the law to go into effect, she continued, “But at this juncture in this case, that conclusion would be premature.”

To that, Kagan wrote in her brief dissent, “Administrative stays surely have their uses. But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

The Fifth Circuit, meanwhile, is scheduled to hear Texas’s appeal of the preliminary injunction on April 3.

Zoom news

[Update, 6:30 p.m. ET: Following the Supreme Court’s Tuesday afternoon order in the S.B. 4 litigation, the Fifth Circuit announced at 5:01 p.m. CT that it would be holding a Zoom argument on Texas’s motion for a stay pending appeal at 10 a.m. CT Wednesday, March 20.

Although it’s a positive sign that the appeals court does appear to have seen Barrett’s message, the likely result here is that the merits panel considers the motion and ends the administrative stay by granting or denying the request for a stay pending appeal, which then leads the losing party right back to the Supreme Court asking for relief on the shadow docket — or en banc to the full Fifth Circuit

The panel hearing the arguments on Wednesday is set to be Chief Judge Priscilla Richman, a George W. Bush appointee; Andy Oldham, a Trump appointee; and Irma Ramirez, a Biden appointee. The arguments will be livestreamed, with a link available from this page.]

This is a rapidly developing story. Please check back at Law Dork for the latest.