The Supreme Court allowed Texas’ new law creating state penalties for illegal immigration to go into effect after erasing a hold the justices had placed.
The law is being feverishly contested in a federal appeals court, but the appeals judges have said Texas can enforce the provisions in the meantime. The Supreme Court had placed a brief stay on the decision but lifted the hold on Tuesday.
Three justices dissented, saying they would have kept the hold in place and warning that allowing Texas to enforce its own version of immigration laws is a recipe for upheaval.
“The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional,” wrote Justice Sonia Sotomayor.
The Texas law creates a misdemeanor state penalty for those who sneak across the border, and a felony penalty for those who sneak in after previously being deported. Both those provisions mirror federal law.
The law also created a type of state-run deportation system.
Led by Republican Gov. Greg Abbott, the law is the stiffest of a series of attempts to plug gaps in border security Texas says President Biden has created with his more relaxed approach to illegal immigration.
Immigrant rights groups and the Biden administration challenged the law, saying it trampled on the federal government’s powers to control immigration.
Mr. Abbott has argued the state has an independent power to protect its citizens, particularly in light of the “invasion” he says the flow of migrants represents. He points to the Constitution’s invasion language as providing a state with authority.
A federal district judge issued an injunction against the state law but the 5th U.S. Circuit Court of Appeals used what’s known as an “administrative stay” to block that injunction.
The appeals court is rushing the case through its docket, with oral argument scheduled for early next month.
The issue before the Supreme Court justices was whether the administrative stay is valid. Administrative stays are supposed to be short-term delays while courts manage their dockets and figure out how to schedule issues. The other option would have been a stay pending appeal, which is a more substantive blockade on a lower court ruling.
Justice Amy Coney Barrett, joined by Justice Brett M. Kavanaugh, said the Supreme Court has never been in the business of policing administrative stays. But she said a stay pending appeal could draw the high court’s scrutiny.
“The time may come, in this case or another, when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. But at this juncture in this case, that conclusion would be premature,” Justice Barrett wrote.
But the dissenting justices said too much is riding on Texas’ law to allow it to take effect, even for a short time.
“Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico,” Justice Sotomayor wrote.
“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,” she wrote in a dissent joined by Justice Ketanji Brown Jackson.
Justice Elena Kagan wrote a separate dissent, saying the 5th Circuit’s administrative stay was “unreasoned” and deserving of a blockage by the high court.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.