An attorney defending Texas' plans to arrest migrants who enter the U.S. illegally told a panel of federal judges Wednesday that it's possible the law “went too far,” but that will be up to the court to decide.
The comment was made to a 5th U.S. Circuit Court of Appeals panel that has already previously halted Republican Gov. Greg Abbott's strict immigration measure. Similar proposals that would allow local police to arrest migrants are now moving through other GOP-led statehouses, including many far from the U.S.-Mexico border.
Texas was allowed to enforce the law for only a few confusing hours last month before it was put on hold by the same three-judge panel that heard arguments Wednesday. No arrests were announced during that brief window.
“What Texas has done here is they have looked at the Supreme Court’s precedent and they have tried to develop a statute that goes up to the line of Supreme Court precedent but no further,” Texas Solicitor General Aaron Nielson said. "Now, to be fair, maybe Texas went too far and that is the question this court is going to have to decide.”
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The panel did not indicate whether it believed Texas had overstepped but later questioned Nielson about the specifics and application of the law.
During the hourlong hearing in New Orleans, the Justice Department argued that Texas was trying to usurp the federal government's authority over immigration enforcement. Texas, however, insisted it would work with the federal government.
The law, known as SB4, allows any Texas law enforcement officer to arrest people suspected of entering the country illegally. Once in custody, migrants could either agree to a Texas judge’s order to leave the U.S. or be prosecuted on misdemeanor charges of illegal entry. Migrants who don’t leave could face arrest again under more serious felony charges.
Asked how the state would enforce judges' orders for migrants to return to the country from which they entered the U.S. illegally, Nielson said they would be turned over to federal officials at ports of entry. He then stumbled to explain how that is different from what is happening at the border now. At one point, Chief Judge Priscilla Richman questioned what the provision accomplished then.
Daniel Tenny, an attorney representing the U.S. government, said the state was attempting to “rewrite Texas SB4 from the podium with regard to the removal provision.”
Richman, an appointee of Republican President George W. Bush, previously ruled in favor of temporarily halting the law.
Judge Andrew Oldham, who was appointed by President Donald Trump and previously opposed the stop, suggested each provision of the law should be scrutinized to determine which, if any, are preempted by federal mandates. Oldham also posed scenarios to attorneys for the federal government of how elements of the law could play out.
“If the court is persuaded that the criminal provisions of SB4 are preempted by federal law, as it indicated it was likely to do in the stay opinion, then really nothing that was said about the removal provisions matters,” Tenny said.
Abbott and other Republicans who approved the law say it’s necessary because President Joe Biden’s administration is not doing enough to prevent illegal border crossings. Justice Department officials have said it would create chaos in the enforcement of immigration law and affect foreign relations.
In the panel's 2-1 decision last month, Richman cited a 2012 Supreme Court decision that struck down portions of a strict Arizona immigration law, including arrest power. Opponents of the Texas law have said it is the most dramatic attempt by a state to police immigration since that Arizona law.
The panel's March 19 ruling came hours after the U.S. Supreme Court cleared the way for the Texas law to take effect. The high court, however, did not rule on the merits of the law and sent the case back to the appeals court for further proceedings.
North Texas immigration attorney Omar Ortiz Velez said Wednesday's hearing is the first that focused solely on the validity and legal details of SB4.
"The federal government's main argument has basically stayed the same. They are still arguing that the federal government is the one and only power that can enforce immigration," Ortiz Velez said. "The state's argument today was a little more broad than they usually have been."
Ortiz Velez said he expects the panel to issue a ruling soon, though it's expected the case will quickly be appealed.
"At the end of the day, the United States Supreme Court will decide the case," Ortiz Velez said.
