WASHINGTON — The Supreme Court on Tuesday turned down a plea from the Biden administration and cleared the way for Texas to enforce a new state law that authorizes its police to arrest migrants who illegally cross the Rio Grande.
The decision to lift a stay the law while a legal battle over immigration authority plays out came on a 6-3 vote, but several justices stressed the preliminary nature of the dispute.
Justices Sonia Sotomayor and Ketanji Brown Jackson issued a strong dissent. “Today, the Court invites further chaos and crisis in immigration enforcement,” they said. “Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico. 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,” they said.
Justice Elena Kagan dissented separately.
At issue is whether Texas and other red states may strictly enforce laws against coming into the country illegally. Those state leaders say they are acting because of what they view as lax enforcement by the Biden administration.
The Justice Department said that if Texas were allowed to enforce its own hard-line immigration policy, it would “create chaos” along the border and “disrupt” relations with Mexico. Department lawyers urged the justices to “maintain the status quo” while the lower courts considered challenges to the new state law.
But Texas’ lawyers pointed to the increase in the numbers of migrants crossing the Rio Grande and said smugglers have taken advantage of lax enforcement.
They cited President Joe Biden’s comment during his State of the Union speech: “People pay these smugglers $8,000 to get across the border,” he said, because migrants know “if they get by and let into the country, it’s six to eight years before they have a hearing.” Biden was making a plea for a bipartisan border bill that he said would shorten the delay for asylum hearings and thus reduce incentive for illegal crossings.
Gov. Greg Abbott had championed the new state law and argued Texas had the power as a “sovereign” state to protect itself against what he’s termed an “invasion.” He cited the late Justice Antonin Scalia, who laid out a similar view in a dissent in 2012, insisting it was a myth that the Constitution gave the federal government exclusive power over immigration.
On Feb. 29, a federal judge in Austin had blocked the law from going into effect on the grounds that it conflicted with federal enforcement. Four days later, the U.S. Court of Appeals for the 5th Circuit in New Orleans lifted the judge’s order by a 2-1 vote and with no explanation.
The Supreme Court refused to lift that order, which allows the law to take effect, at least temporarily.
The American Civil Liberties Union and immigrants rights groups had also sued to block the Texas law from taking effect and said it could have a “devastating impact” on migrants and could lead to racial profiling.
The Texas law was seen as a direct challenge to past Supreme Court rulings that upheld the federal government’s sole power over immigration enforcement.
In 2012, the justices, by a 5-3 vote, blocked most of an Arizona law that would have given state officials and local police the authority to enforce restrictions on migrants who were “not lawfully present in the United States.” The court said then that federal law preempts or overrides state enforcement that “conflicts” with federal enforcement.
The Biden administration said the Texas law is “flatly inconsistent” with the 2012 ruling and cannot stand. “More than a century of this court’s precedents … recognize that the authority to admit and remove non-citizens is a core responsibility of the national government,” Solicitor General Elizabeth Prelogar wrote in her emergency appeal.
In defense of the Texas law known as Senate Bill 4, the state’s attorneys said it “mirrors” the federal law on immigration and does not “conflict” with it.
They said “SB 4 allows Texas to help enforce federal immigration laws. Everyone benefits when Congress’s legislatively chosen priorities are respected. … Texas is the nation’s first-line defense against transnational violence and has been forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border.”
The 5th Circuit is due to hear arguments over the legality of the Texas law April 3.