Texas's S.B. 4 immigration enforcement law appears likely to remain on hold for now

Chief Judge Priscilla Richman of the Fifth Circuit, a George W. Bush appointee, was skeptical of Texas's arguments to enforce the law immediately.

Following Wednesday morning’s arguments before the U.S. Court of Appeals for the Fifth Circuit, it appears likely that Texas’s S.B. 4 criminal immigration law — or at least the key components of it — will remain on hold for now after 48 hours of whiplash over the law at the start of this week.

Chief Judge Priscilla Richman, a George W. Bush appointee and the pivotal vote on Wednesday’s three-judge panel, expressed significant doubts about the arguments advanced by Texas Solicitor General Aaron Nielson for allowing the state to enforce S.B. 4 immediately.

Among other provisions, the law creates a new Texas crime of “illegal entry” and allows for state enforcement of that law, including removal. The removal provision appeared almost certain to remain blocked pending appeal, and the entry provision faced strong pushback from Richman as well. (Those are the two key parts of the law. The remainder of the law is almost all provisions related to implementing those two parts of the law.)

While Nielson was insistent that the law “mirrors” federal law and suggested that the state would be working in tandem with the federal government in its implementation, he lacked information about what several provisions Richman questioned even mean. For other provisions, he argued that they would have limited effect due to declarations submitted by state officials about their enforcement plans.

To his coordination point, a skeptical Richman pointed out during Neilson’s rebuttal time: “Senate Bill 4 doesn't have any consultation whatsoever.”

Texas’s request, for a stay pending appeal, is Texas’s ask to enforce the law while the Fifth Circuit considers Texas’s appeal of the preliminary injunction entered against enforcement of the law at the end of February before S.B. 4 was set to take effect in March.

After U.S. District Judge David Ezra, a Reagan appointee, issued the preliminary injunction on Feb. 29, blocking enforcement of S.B. 4, Texas went to the Fifth Circuit asking for a stay of the injunction pending appeal. Before ruling on that, a three-judge motions panel, on a 2-1 vote, granted an administrative stay while allowing the merits panel to resolve the state’s request for a stay pending appeal. (Judges Edith Clement, a George W. Bush appointee, and Kurt Engelhardt, a Trump appointee, were in the majority; Judge Irma Carrillo Ramirez, a Biden appointee, would not have granted the administrative stay.) The administrative stay — while, as its name suggests, is to be treated as a mere administrative convenience measure for the court issuing it or the parties — ultimately has the same legal effects as a stay pending appeal, which, here, meant Texas would be able to enforce S.B. 4.

A lot of procedural complications followed, but the short version is that the Supreme Court on Tuesday allowed the Fifth Circuit’s administrative stay to remain in effect, meaning the law went into effect. Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, issued what was in essence both a free pass this time for using administrative procedures to create substantive results — what they called the “exercise of its docket-management authority” — but also a warning that they might not be so forgiving if the court kept doing this.

It appears that Richman — the chief judge of the circuit and a judge on the merits panel — moved quickly at that point, along with Ramirez, on both the motions and merits panels in the case. The third judge on the merits panel is Judge Andy Oldham, a Trump appointee. Within hours of the Supreme Court’s order Tuesday, this merits panel scheduled the Wednesday arguments on Texas’s motion for a stay pending appeal. By the end of the night, Richman and Ramirez also lifted the administrative stay — putting S.B. 4 back on hold. To that, Oldham dissented.

On Wednesday morning in the Zoom arguments over Texas’s stay request, the most important news was Richman’s skepticism.

Richman was the primary questioner of Nielson. Oldham, meanwhile, only asked questions of the lawyers representing those challenging the law — Daniel Tenny from the Justice Department’s Civil Division, and Cody Wofsy, from the ACLU’s Immigrants’ Rights Project. I do not believe Ramirez asked any questions. Given that she was the only judge on both the motions and merits panel, it’s entirely possible that she already had reached her conclusion on the stay pending appeal question and felt it best to allow the other judges to use the argument time.

A key factor at issue here is that Texas passed and Nielson is defending the law despite the fact that the Supreme Court’s 2012 decision in Arizona v. U.S. struck down similar provisions in an Arizona law.

When Oldham asked Tenny about the limits of the discussion in the Arizona decision, Tenny responded bluntly that it wasn’t necessary for the court then to have gone further because “Arizona had not gone as far as Texas had gone here.”

A ruling could come at any time now on Texas’s request for a stay pending appeal — which could lead to another trip to the Supreme Court or even an attempt by Texas at en banc review from the full court. Ultimately, though, the Fifth Circuit — this same three-judge panel — is already set to hear the merits of Texas’s appeal of the preliminary injunction just two weeks from now, on April 3.

So, regardless of what happens here, S.B. 4 — and Texas’s attempt to begin enforcing immigration law itself — will be staying in the news for the foreseeable future, even if it does remain on hold during that time.