Texas is fighting to end federal immigration supremacy

The state's Republican leaders hope that a Trump-infused judiciary will back their efforts. Also: Tennessee lawmakers passed an anti-LGBTQ adoption bill.

Texas has attempted to overtake federal authority — physically and legally — when it comes addressing people crossing into the state along its southern border. A broad look at its actions in recent months, particularly when seen in conjunction with one another, show how aggressively it is trying to end federal immigration supremacy.

One of those actions — Texas’s passage of a criminal immigration law that includes a provision authorizing state judges to order the removal of people from America — will face a panel of federal appeals court judges on Wednesday.¹ The case, over Texas’s S.B. 4, has prompted the Justice Department to argue that it is an attempt to upend 150 years of precedent. That’s not the only case. Several cases involving Texas actions relating to immigration are in various stages on appeal.

Texas’s approach is not the way things generally go. State authorities can and do support federal authorities in this field, but they do not make the policy. As the U.S. Supreme Court described it when Arizona passed a law that didn’t even go as far as Texas’s law does, congressional action establishes that many areas of immigration policy are solely controlled by the federal government, preempting state actions like S.B. 4. Additionally, exclusive federal authority regarding immigration is strongly supported due to the effect immigration policy has on foreign relations. That, of course, is solely a federal matter.

Now, it’s of course not new that Republican leaders in Texas like to challenge Democratic administrations, including on immigration. But, like many other far-right actors, Texas’s leaders hope that a Trump-infused federal judiciary — including, ultimately, the U.S. Supreme Court — will be OK with some fundamental changes to that longstanding understanding surrounding immigration policy. So, Texas officials are taking steps all but daring the federal government to go to court and, in one prominent case, suing the federal government themselves.

Texas’s attempt to wrest immigration authority from the federal government has resulted in three ongoing cases of particular significance: the Biden administration’s lawsuit against Texas over the floating barrier the state attempted to establish in the Rio Grande to block people from crossing, Texas’s lawsuit against the Biden administration over Texas’s claim that the administration was damaging concertina wire fences (c-wire fences) that the state put up, and the Biden administration and organizations’ challenges to Texas S.B. 4’s criminal immigration law.

All three cases are currently before the U.S. Court of Appeals for the Fifth Circuit, where the court’s 17 active judges include six Trump appointees and only five Democratic appointees. It is also a court whose extremism has repeatedly found its way to the Supreme Court.

So, where do things stand? This gets into some nitty-gritty details, but I think they’re important to understanding both the overlap between the cases and the complications that each case raises:

S.B. 4 cases: One panel — made up of Chief Judge Priscilla Richman (George W. Bush) and Judges Andy Oldham (Trump) and Irma Carrillo Ramirez (Biden) — has kept S.B. 4 on hold during Texas’s appeal of a district court’s preliminary injunction blocking enforcement of the law (after those procedural complications that included a trip to the U.S. Supreme Court). The merits appeal of that preliminary injunction will be heard at 9 a.m. CT Wednesday. (Information about attending or listening to the livestreamed arguments can be found here.) The prior arguments and the 2-1 vote against Texas’s request for a stay of the injunction pending the appeal make it likely, though not certain, that the panel will keep the law blocked — which almost certainly would prompt further appeals from Texas.

Update: Law Dork’s report on the Fifth Circuit’s arguments can be found here.

C-wire fences case: In December 2023, after the district court had rejected Texas’s request for an injunction against the federal government in the c-wire fences lawsuit, Judges Don Willett (Trump), Kyle Duncan (Trump) and Judge Catharina Haynes (George W. Bush) granted, on another 2-1 vote, Texas’s request to block federal action relating to the c-wire fences pending appeal. The Justice Department took this motions panel ruling to the Supreme Court, which stepped in, on a 5-4 order, to vacate the panel’s injunction pending appeal. Following the Supreme Court order, a merits panel consisting of Willett, Duncan, and Ramirez asked the district court to conduct additional factual findings about the actions of federal and state officials regarding the area where the c-wire fencing was being used in Eagle Pass, Texas.

U.S. District Judge Alia Moses held a supplemental hearing, and issued her supplemental findings on March 26. There are several areas where Moses declined to issue formal findings because, she wrote, there was no clear finding that she believed she could make.² But, it is clear — and Texas itself claims — that it overtook Shelby Park, where federal officials had maintained a staging area for processing people crossing the Rio Grande, as a “military operation,” as Moses detailed (Plaintiff is Texas, CBP is U.S. Customs and Border Protection, DPS is Texas Department of Public Safety, and TXNG is Texas National Guard):

After describing the “military operation,” Moses also noted:

Following the receipt of Moses’s additional findings, on Monday, the Fifth Circuit asked the parties to advise the court by Friday on whether this appeal still needs to be considered on an expedited basis. Given the fact that the Supreme Court already took the unusual action of vacating the earlier motions panel’s injunction pending appeal, it’s possible that the merits panel — even though the majority from the motions panel is on the merits panel — has decided it can possibly slow things down given the other cases.

Floating barrier case: A final panel — made up of Willett and Judges Carolyn King (Carter) and Dana Douglas (Biden) — issued a third 2-1 ruling, this time in the floating barrier case. The panel’s December 2023 ruling sided with the Biden administration, upholding a lower court’s injunction blocking Texas from continuing its effort to construct the barrier. The full court agreed to rehear the case en banc and put the injunction on hold pending the outcome of the en banc rehearing — two moves suggesting the full court is likely to side with Texas or at least strongly open to doing so. Those en banc arguments are set for next month, on May 15.

As rulings come out of these cases, there could be additional en banc requests — in the S.B. 4 or c-wire fences cases — or efforts — in any of the cases — to get the Supreme Court to act, either on the shadow docket or by hearing full appeals.

Due to the calendar, moreover, the Supreme Court is almost certain not to decide any such appeal, even if it agrees to hear it, until well after the presidential election — meaning, ultimately, that these disputes’ final resolution probably will be subject to the outcome of the upcoming presidential election.

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A disturbing Tennessee bill

Erin Reed highlights legislation that has now passed both legislative chambers in Tennessee:

Tennessee Passes Bill Allowing Non-Accepting Parents To Adopt LGBTQ+ Kids

This is an extremely dangerous bill — S.B. 1738 — that, as passed, would alter adoption and foster care policies in the state if it becomes law. Among other provisions, it would literally bar the department of children’s services from protecting LGBTQ children in placement decisions:

Republican Tennessee Gov. Bill Lee — who has previously, including this year, signed several other anti-LGBTQ measures into law — will now get the bill.

1. The extended discussion of the S.B. 4 case references the correct Wednesday date for the arguments, but this paragraph initially had the incorrect day mentioned. It was corrected immediately after publication.

2. This paragraph initially used incorrect pronouns for Judge Moses and was corrected at 10:10 p.m.