What to know about SB 4, the Texas immigration law in the courts now

A whirlwind of court orders on Tuesday briefly allowed, then blocked again, a controversial new immigration law in Texas that would allow state and local law enforcement to arrest and deport people who are in the state illegally.

The Biden administration has objected to the law, known as Senate Bill 4, saying that the Constitution and legal precedent establish that the federal government has the exclusive power to enforce immigration law.

While a federal court considers the merits of the law, a legal back-and-forth over whether the bill should take effect in the meantime created chaos Tuesday.

For several hours, the U.S. Supreme Court allowed the law to be enforced. But then, close to midnight, a lower court put the law back on hold and scheduled a last-minute hearing on Wednesday morning.

At the hearing, a three-judge panel questioned the Texas solicitor general about details of the law and heard arguments from the U.S. Department of Justice and the ACLU about why it should be struck down.

The law remains on hold while the appeals court deliberates.

Here’s what to know:

What is SB 4?

Senate Bill 4 is a Texas law passed late last year that empowers state and local law enforcement agencies to enforce immigration law. Texas Republicans who championed the legislation say it’s a response to the Biden administration’s border policies, which they have criticized as being too permissive.

“It’s important because it helps address what even the president has called a border crisis,” said Texas solicitor general Aaron Nielson at Wednesday’s hearing.

The bill would allow state and local police officers to arrest people suspected of being in the country illegally, and it would allow judges to order the deportation of migrants to ports of entry along Texas’s border with Mexico, regardless of which country the migrant is from.

The bill was originally set to go into effect on March 5. But the U.S. government and the ACLU both filed lawsuits against it, and a district judge issued a preliminary injunction to block the law from enforcement while the case was being heard.

Texas appealed the injunction to the Fifth Circuit Court of Appeals. The appeals court turned to the Supreme Court, which ultimately allowed the law to go into effect on Tuesday before the appeals court blocked it. (The Supreme Court did not issue an opinion clarifying whether the majority had supported the merits of the law or if it simply viewed its decision as a procedural one.)

Now, the Wednesday hearing at the Fifth Circuit considered the question of whether to allow the district judge’s preliminary injunction to take effect — thereby continuing to block SB 4 from enforcement.

What is the legal challenge to the bill?

The Biden administration has argued that Texas overstepped its constitutional limits in passing SB 4, and they maintain that immigration policy and law enforcement are exclusive functions of the federal government.

Critics of SB 4 have cast the law as Texas’ attempt to take over those law enforcement capabilities, a notion that Nielson disputed at Wednesday’s hearing. “That’s really not true,” he told the panel. “What Texas wants to do is to be able to coordinate with the federal government.”

Federal attorneys, meanwhile, have repeatedly pointed to a 2012 Supreme Court decision known as Arizona vs. United States, a case about a state law in Arizona that sought to create state-level crimes for immigration offenses and empower local law enforcement to check citizenship status and arrest people suspected of being in the country illegally. In a 5-3 decision, the court sided with the federal government and struck down most of Arizona’s law.

Because the Texas law goes further than Arizona, Department of Justice attorney Daniel Tenny argued Wednesday, SB 4’s provisions should too be blocked. “This is more at the heart at the area that the court has consistently recognized is reserved for the national government,” he said.

What do opponents of the law say?

Groups that advocate for civil rights and immigrants’ rights have criticized the law over concerns that it could lead to racial profiling. SB 4 would allow law enforcement officers to question someone’s immigration status for any reason.

“We know that this law is going to increase racial profiling. We know that this law is going to strip people of their constitutional rights. We know that this law is also going to lead to the mass criminalization of our communities,” said Alan Lizarraga, a spokesperson for the Border Network for Human Rights, speaking to the Texas Newsroom.

Opponents also worry that migrants with legitimate claims to asylum could have their federal cases asylum complicated by the Texas law if they come to face state criminal charges.

Mexico also opposes the law. Its foreign affairs ministry said in a statement Tuesday that the country will not accept migrants who have been deported under the Texas law. And it expressed concern for Mexican nationals living in Texas, who it said could now be subject to “expressions of hate, discrimination and racial profiling.”

With the case back at the Fifth Circuit, Mexico said it plans to file a legal brief in opposition to SB 4 that lays out how the law could affect the relationship between the two countries, the statement said.

What do law enforcement officers in Texas say about the law?

Local law enforcement officers say they are prepared to enforce the law. But others have said they have not received clear guidance about how to implement it, or whether they’ll have resources needed to carry out arrests in large numbers.

“I think we’re going to be very selective about the cases we pick up,” said Culberson County Sheriff Oscar Carillo, whose jurisdiction is located along the west Texas border. “Our jail is at capacity as we speak today, and to start incarcerating undocumented people and charging them a misdemeanor crime is a discussion I’ll have to have with my county attorney,” he told the Texas Newsroom on Tuesday.

Wednesday’s appeals court hearing revealed the extent to which details of the law’s enforcement have yet to be hammered out. Nielson, the Texas solicitor general, struggled to answer a series of questions from Chief Judge Priscilla Richman about how various scenarios would play out.

For instance, when Richman asked how the law would be applied to a person who entered the U.S. illegally through another border state before moving to Texas, Nielson replied, “I confess, your honor, I don’t know.”