Supreme Court Extends, Then Lifts, Stay on Controversial Texas Border Control Law

Updated: March 19, 2024, 7:30 PM EDT

Less than a day after this original story and in a surprise reversal, the U.S. Supreme Court announced it was lifting the order Justice Samuel Alito issued yesterday to hold off enforcing a new Texas border control policy authorizing its state police to arrest and detain individuals suspected as being illegal immigrants.

It did so via a formal 6-3 emergency decision divided on political lines, with the three liberal justices dissenting and arguing in favor of the original lower court decision issued on February 29, 2024, that rejected the law as unconstitutional. The lower court judge declared at the time that the law violated the Constitution’s federal supremacy clause by yielding powers to the state regarding what that judge deemed as international law enforcement.

In a formal dissent to the ruling, Justice Sonia Sotomayor wrote that the majority ruling would only create “further chaos and crisis in immigration enforcement.”

“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,” Sotomayor wrote.

Justice Ketanji Brown Jackson joined Justice Sotomayor in her dissent.

In a statement released after the Court issued its surprise full Court ruling, Texas Attorney General Ken Paxton heralded the decision as a major win for the state and border control across the country.

“Texas has defeated the Biden Administration’s and ACLU’s emergency motions at the Supreme Court,” Paxton wrote in a statement released on the social media platform X late yesterday. “Our immigration law, SB 4, is now in effect.”

The full text of the original article published yesterday prior to the surprise ruling appears below in its entirety.

The focus for this new dispute between the state of Texas and the White House is Texas Senate Bill 4, which was to go into effect just two weeks ago.

Passed in the state legislature and signed into law in December by Republican Governor Greg Abbott, the legislation granted state officers authority to arrest and hold individuals they believed had entered the United States illegally. Once apprehended, those detained under these charges would be given a court hearing regarding their immigration status. If found guilty of entering unlawfully or not being able to prove they had a legal right to be in the United States, the individual would be ordered to immediately leave the country in most cases, or in others accept a misdemeanor charge for coming across the border unlawfully. If they did not obey that order they could be arrested again, after which they would be readily found guilty of a felony, with more serious consequences.

The rationale for the new law was that, under Joe Biden’s watch as president, illegal immigration into the United States has surged to record levels over the past year. In December 2023 the U.S. Border Patrol counted a minimum of 250,000 unlawful migrants came across the Mexican border in the United States. It was the biggest single number of illegals ever recorded, higher than the previous peak of 224,000 which happened in May 2022.

Illegal immigration brings with it genuine challenges for southern border states, including potential increased crime in border towns and cities, and what to do about enforcement of immigration laws when illegal immigrants are discovered by local authorities. Under the U.S. Constitution, states are in general also forbidden to intervene or interfere with any legal matters regarding cross-border issues with any foreign country, whether with Canada on the north or Mexico at the south.

Illegal immigration has also become a flashpoint for political firestorms between the Democratic administration of Joe Biden and Republicans in Congress as well as at the state level. The House of Representatives, under Mike Johnson as Speaker, has in the last several months blocked multiple bills from floor consideration and passage onto the Senate because of what House Republicans believe is a lack of tough enough border control policies from the White House. Joe Biden has countered this with arguments that there was already a valid Democratic Party proposal to tighten border regulations on the table, at that the House had refused even to consider it.

The political arguments over border control reached a new fever pitch when right-wing House Republicans insisted on holding hearings arguing for the impeachment of Alejandro Mayorkas, the United States Secretary of Homeland Security, on the loose grounds that he failed his responsibility to control illegal immigration across the U.S. borders. Though broadly seen as just about politics rather than anything substantive, the House succeeded first in charging Mayorkas on crimes of dereliction, perjury during testimony before Congress, and breaching the public trust. Though many saw the charges as entirely politically motivated, in the end Mayorkas was finally impeached last month on charges of failure to comply with Federal immigration laws and breaching the public trust, by a one-vote majority of 214 to 213.

Since impeachment, while serious, is just the first in a two-step process of removing a high official like Mayorkas from office, the next step in this is for the House to provide the Senate with formal articles of impeachment for them to pursue against Mayorkas. That has not happened, and the full impeachment trial has not been set. Assuming it does happen, few believe the Democratic-controlled Senate would impeach him.

But leaving the shadow of a potential impeachment hovering over the Senate still allows Republicans to claim the impeachment is still hanging over Mayorkas, and that border control is still an unresolved issue in the Biden administration.

The current law in Texas is itself the second action that state has taken in its own fight with the White House over border issues. Before this bill was passed, Texas authorities had strung razor and concertina wires in the Rio Grande River and on the Texas side of its border with Mexico. As installed by the authorities, it was thick and sufficiently painful to navigate that most every illegal who attempted to pass through it stopped, rather than risk being slashed deep and low numerous times in the process of the passage into the U.S.

In January the U.S. government sued Texas in court over installing the wire. It claimed that any action involving border crossing was legally the purview of the Federal government and only the Federal government. The case quickly escalated past appeals courts and to the U.S. Supreme Court, which eventually ordered Texas to get out of the way and let the Federal government cut down the razor and concertina wire in the river and up the bank from it.

The new law represents a far more serious breach by the state into what constitutes action only the federal government can take and what is reserved solely for the federal government.

Once it passed, multiple human rights organizations including the American Civil Liberties Union, plus the county of El Paso, Texas, filed suit to strike down the law. They argued that if the law were to allow to stand, besides that it would be an unconstitutional overreach of power, it could also result in racial profiling and worse problems among state authorities.

“People can disagree about immigration,” attorneys representing those organizations wrote in their original court filing in this case. “They always have. And Texas may be deeply concerned about recent immigration.”

“But the same was true of California in the 1870s, Pennsylvania and Michigan in the 1930s, and Arizona in 2012, they continued. “Nevertheless, for 150 years this Court has made clear that states are not allowed to regulate the core immigration field of entry and removal.”

On the Texas side, state officials told the lower courts that the “Constitution recognizes that Texas has the sovereign right to defend itself from violent transnational cartels that flood the State with fentanyl, weapons, and all manner of brutality.” It further said that Texas was “forced to deal with the deadly consequences of the federal government’s inability or unwillingness to protect the border”, as “the nation’s first-line defense against transnational violence.”

The law was scheduled to go into effect on March 2, 2024.

On February 29, U.S. District Judge David Ezra struck down the new law in a 114-page judgment. It asserted the U.S. constitutional supremacy clause, arguing that Texas cannot have any overriding authority over federal immigration law. It did so on multiple counts, arguing not only that the federal government is the only entity with legal authority on immigration, but also that if an individual state were to assume any of that authority it could affect foreign relations and obligations by the federal government regarding treaties between it and a country such as Mexico.

Ezra also outright rejected Texas authorities’ argument that Texas had to do something on its own to deal with an “invasion” from its southern border that the federal government was not stopping.

Two days later, a federal appeals court ruled in an emergency hearing to stay Ezra’s decision, effectively reinstating the tenets of the new law.

The appeals ruling went up almost immediately to the U.S. Supreme Court for review. On March 4, Justice Samuel Alito issued a stay on the appeals court decision until at least March 13, a date which was extended to this week to give the Court more time to consider the matter. That meant the original law would remain blocked for now.

Alito, who has jurisdiction for stays over these appeals court decisions under certain circumstances, issued his stay after the Justice Department argued before the court that allowing the law to stand would substantially change “the status quo that has existed between the United States and the States in the context of immigration for almost 150 years.” It also said allowing the law to proceed would create “significant and immediate adverse effects” on the United States relations with Mexico.

In his action, Alito did not overturn the appeals court action but instead simply stayed the law for the time being. He gave Texas up until March 11 to respond, which it did.

After review of what Texas said as its answers to the Justice Department’s arguments, Justice Alito yesterday issued an indefinite stay of the new law, pending receipt of additional arguments that that he and the full court might be willing to consider in the future.

In response to Alito’s new stay, Governor Greg Abbott made it clear this was not the end of the matter for him.

“The Supreme Court has temporarily halted enforcement of SB 4, but it didn’t halt Texas’ pre-existing authority to arrest for criminal trespass and other violations of the law,” the governor wrote in a statement issued late yesterday following the ruling. “Texas will continue utilizing every tool and strategy to respond to this Biden-made border crisis.”

It is not clear why the White House is so intent on flooding the U.S. with migrants. Some suspect that it is an act of treason because thousands of the migrants appear to be Chinese soldiers being pre-positioned on U.S. soil. China's President Xi Jinping has made it very clear that China is preparing for war with the U.S.  Some of the military looking Chinese men are sent to work at least temporarily and illegally on cannabis farms spread across the U.S. run by Chinese criminal gangs under the control of the Chinese military. Oklahoma alone has more than 2,000 such farms.

Congress has asked the White House to do something about it and wrote, "There is substantial evidence implicating the [Chinese Communist Party] in directly supporting illicit marijuana grow operations across the United States. Further, the same DHS document indicated 270 suspected illicit marijuana operations in rural Maine generated an estimated $4.37 billion in revenue, far outpacing the $158 million from the state’s legal marijuana market last year… This issue is not limited to the illegal cultivation and distribution of marijuana. Allowing illicit marijuana farms tied to the CCP is a continued threat to national security, public safety, and human rights."

A group of retired high level FBI agents also warned the government that the open border policy of Team Biden was a major threat to the security of the U.S.

Another reason for opening the floodgates to migrants may be that the White House plans to grant them all the right to vote in the presidential election in November in order to skew the vote towards dementia-ridden war criminal Biden, if he manages to stay standing by then.