What to Know About SB4, Texas’s New Immigration Law

A sweeping new Texas law that would empower state and local police officers to arrest migrants who cross into the state from Mexico without authorization faces an uncertain future.

On Tuesday, the U.S. Supreme Court briefly cleared the way for implementation of the law, which the Biden administration has challenged as an unconstitutional infringement on the federal government’s power to set and enforce immigration law.

But when the justices returned the case to an appellate court to decide whether a district court’s block of the law should stand while the challenges made their way through the legal system, the appellate court promptly dissolved its own earlier order allowing the law’s enforcement during the process. That put the law on hold once again — for the moment.

The appellate court has scheduled hearings on the issue for Wednesday morning.

Critics say the law could lead to the detention of people hundreds of miles from the border, if police officers suspect that they are in the country illegally. It would certainly allow Texas to expand the border security measures that it has put in place on private land along the border, including barriers of razor wire, National Guard troops and a buoy barrier in the Rio Grande.

The actual case over who ultimately has jurisdiction will continue to play out in the courts, with far-reaching implications for immigration enforcement in the United States.

A Federal District Court judge in Austin temporarily blocked the law from going into effect on March 5. The judge ruled that the statute ran afoul of federal law and the U.S. Constitution. In issuing a preliminary injunction, the judge found that Texas would very likely lose the case on the merits.

Texas has argued that its law was necessary to deter migrants from crossing illegally, as has happened in record numbers over the past year.

“No matter how emphatic Texas’ criticism of the federal government’s handling of immigration on the border may be to some,” the judge, David A. Ezra, wrote in his 114-page decision, “disagreement with the federal government’s immigration policy does not justify a violation of the Supremacy Clause” of the Constitution, which establishes that federal law generally takes precedence over state law.

Texas immediately appealed the decision, and the legal debate has centered on whether the judge’s injunction is or is not allowed to block the law while the appeals are being considered.

What does the Texas law say?

The law passed by the Texas Legislature, known as Senate Bill 4, makes it a crime to cross into Texas from a foreign country anywhere other than a legal port of entry, usually the international bridges from Mexico.

Under the law, any migrant seen by the police wading across the Rio Grande could be arrested and charged in state court with a misdemeanor on the first offense. A second offense would be a felony. After being arrested, migrants could be ordered during the court process to return to Mexico or face prosecution if they did not agree to go.

Critics say it could lead to the detention of people far from the border, if police officers suspect they are in the country illegally.

Texas lawmakers said they had devised S.B. 4 to closely follow federal law, which already prohibits illegal entry. The new law effectively allows state law enforcement officers all over Texas to conduct what until now has been the U.S. Border Patrol’s work.

It allows for migrants to be prosecuted for the new offense up to two years after they cross into Texas.

How does it challenge federal immigration authority?

Judge Ezra, in issuing the preliminary injunction, found that the Texas law conflicted with numerous federal laws passed by Congress that provide for a process for handling immigration proceedings and deportations.

And he found that the law interfered with the federal government’s foreign diplomacy role, pointing to complaints already lodged against Texas’ border actions by the government of Mexico. The Mexican authorities have said that they opposed any legislation that would allow the state or local authorities to send migrants, most of whom are not Mexican, back over the border to Mexico.

From the start, the fight over the law had appeared likely to end up before the Supreme Court, legal experts said. It would give the conservative majority a chance to revisit a 2012 case stemming from Arizona’s attempt to take on immigration enforcement responsibilities. That case, Arizona v. United States, was narrowly decided in favor of the power of the federal government to set immigration policy.

Texas argued that the new law would not conflict with existing federal law.

But Judge Ezra expressed concern, during a February hearing, that the law did not allow a judge to pause a prosecution for illegally entering Texas in the case of someone applying for asylum, calling that provision of the Texas law “troublesome” and “very problematic.”

“It just slaps the federal immigration law in the face,” he said.

Texas argued that the record number of migrant arrivals at the Texas border constituted an “invasion” that the state had the power to defend itself against under Article I, Section 10 of the U.S. Constitution, which prohibits states from engaging in war on their own “unless actually invaded.”

The state has cited the same constitutional provision in the other pending cases between Texas and the federal government. But legal experts said the argument was a novel one.

And Judge Ezra dismissed it in his ruling.

“To allow Texas to permanently supersede federal directives on the basis of an invasion would amount to nullification of federal law and authority,” he wrote, “a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.”

Immigrant organizations, civil rights advocates and some Texas Democrats have criticized the law because it could make it more difficult for migrants being persecuted in their home countries to seek asylum, and it does not protect legitimate asylum seekers from prosecution in state courts.

Critics have also said that the law could lead to improper traffic stops and arrests of anyone who looks Hispanic.

How does Texas plan to enforce the law?

The Texas Department of Public Safety, whose troopers have been stationed along the border under Gov. Greg Abbott’s border security program, are expected to take the lead in making arrests should the new law ultimately take effect.

The department has suggested that any ramp-up in enforcement would most likely happen gradually, and would focus on people observed by officers crossing the Rio Grande from Mexico.

For more than two years, state police officers have been arresting migrants who cross onto private land and charging them with criminal trespassing. The new law allows officers to arrest people anywhere in Texas who are believed to have crossed the border without authorization.

Wait, didn’t the Supreme Court already rule against Texas?

Not in this case.

Texas and the Biden administration have been battling for months over immigration enforcement on several legal fronts.

One case involves the placement by Texas of a 1,000-foot barrier of buoys in the middle of the Rio Grande, which Mr. Abbott said would deter crossings. The federal government sued, arguing that the barrier violated a federal law over navigable rivers. In December, a federal appeals court sided with the Biden administration, ordering Texas to remove the barrier from the middle of the river while the case moved forward.

A second case involves Border Patrol agents’ cutting or removing of concertina wire — installed by the Texas authorities on the banks of the Rio Grande — in cases where agents need to assist migrants in the river or detain people who have crossed the border. The Texas attorney general, Ken Paxton, filed a lawsuit claiming that Border Patrol agents who had removed the wire were destroying state property.

It was a fight over an injunction in that case that reached the Supreme Court on an emergency application. The justices, without giving their reasons, sided with the Biden administration, allowing border agents to cut or remove the wire when they needed to while further arguments were heard in the case at the lower court level.

Why are the stakes higher now?

Unlike the other cases, the battle over S.B. 4 involves a direct challenge by Texas to what courts and legal experts have said has been the federal government’s unique role: arresting, detaining and possibly deporting migrants at the nation’s borders.

“This will be a momentous decision,” said Fatma E. Marouf, a law professor and director of the Immigrant Rights Clinic at the Texas A&M University School of Law. “If they uphold this law, it will be a whole new world. It’s hard to imagine what Texas couldn’t do, if this were allowed.”

Have other states passed similar immigration laws?

Legal experts said that S.B. 4 was the only state law known to deputize local authorities to arrest people suspected of illegally entering the country.

But on Tuesday, lawmakers in Iowa passed a bill that would make it a crime to enter the state after being deported or denied entry into the United States. Gov. Kim Reynolds, a Republican, said she planned to sign it.

The Supreme Court’s decision that let the Texas law go into effect for several hours on Tuesday could have the effect of encouraging other Republican-led states to pass their own immigration enforcement laws, said Jon Taylor, a political science professor at the University of Texas at San Antonio.

“If the Supreme Court decides to terminate parts of the Constitution and allows Texas to do something that is a specific federal responsibility, then the floodgates will likely open and we’ll see a lot of the red states introduce and/or pass S.B. 4-like bills,” Mr. Taylor said.

Adam Liptak contributed reporting from Washington.