A federal appeals court cast doubt Wednesday on Texas’ stiff new immigration law that tries to create a state deportation system, with the judges suggesting it would trample on the federal government’s prerogatives.
The 5th U.S. Circuit Court of Appeals put the law on hold late Tuesday, just hours after the Supreme Court had erased its own blockade.
Amid that legal whiplash, a three-judge panel of the appeals court heard oral arguments Wednesday and the members had a host of questions about how the law would work in practice.
Several of the judges cast doubt on the part of Texas’ law that would create a state deportation system, giving state judges the power to order someone to be returned to the border.
And they said there are a host of unanswered questions about how the rest of the law would operate.
“I’m not sure I understand the law totally,” Judge Priscilla Richman said.
Known as SB4, the law creates state-level penalties for entering the country illegally, with both a criminal punishment and a type of deportation as options for state judges. The criminal penalties were written to match federal law, with a misdemeanor for a first offense and a felony for repeat offenders.
The law allows a judge to order deportation, which would mean state authorities take a migrant back to the border.
The state says the legislation is aimed at recent arrivals and is intended to give the state the power to enforce laws when the federal government won’t.
“What we’re trying to do is to make sure that Congress, who sets the national immigration laws, that those laws are followed,” Texas Solicitor General Aaron Nielson told the judges.
State officials have estimated 80,000 arrests a year under the statute.
But Judge Richman said it isn’t clear who exactly falls under the law. She wondered about someone who snuck into the U.S. across the Canadian border and then made their way to Texas, or someone who snuck in elsewhere and lived in another state for years then just arrived in Texas.
She also said a 2012 Supreme Court decision that struck down an Arizona law that purported to criminalize being in the country illegally seems to rule out much of what Texas is trying to do.
Mr. Nielson, while acknowledging the court‘s skepticism about state deportations, said the other provisions dealing out state criminal penalties are squarely in line with other state powers.
He pointed to trespassing, where Texas already prosecutes illegal immigrants who arrive and cross private property. He said the new misdemeanor and felony penalties should be viewed as an expansion of that.
Texas is being challenged by the Biden administration and immigrant-rights groups, who were represented in court by the American Civil Liberties Union.
The specific issue before the court Wednesday was whether to allow the law to go into effect while the case is winding its way through the courts.
A U.S. district court judge issued an injunction blocking the law late last month.
A different panel of the 5th Circuit then issued a short-term “administrative stay” of that injunction, switching the law back on. The Supreme Court then issued its own stay of the stay, turning the law off.
On Tuesday, the justices erased their stay in a 6-3 ruling, turning the law on, then Judge Richman and her colleagues erased their own stay, turning the law back off.
Judge Andrew S. Oldham dissented from that decision, and during Wednesday’s arguments, he seemed the most inclined toward some of Texas’ arguments. He said for the challengers to win, they must prove that every part of SB4 tramples on the federal government’s powers.
He, like Judge Richman, said it was too early to know how the law would be carried out — but he suggested that cuts against the challengers.
“We have no clue how any of this would actually be enforced because there hasn’t been a single person who’s been arrested, not a single person who’s been ordered removed, not a single state judge who’s had occasion to adjudicate a single provision of this,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.