Posted on March 19, 2024

Supreme Court Won’t Block, for Now, Aggressive Texas Immigration Law

Adam Liptak, New York Times, March 19, 2024

The Supreme Court temporarily sided with Texas on Tuesday in its increasingly bitter fight with the Biden administration over immigration policy, allowing an expansive state law to go into effect that makes it a crime for migrants to enter Texas without authorization.

As is typical when the court acts on emergency applications, its order gave no reasons. But Justice Amy Coney Barrett, joined by Justice Brett M. Kavanaugh, filed a concurring opinion that seemed to express the majority’s bottom line.

They were returning the case to an appeals court for a prompt ruling on whether the law should be paused while an appeal moves forward, Justice Barrett wrote. “If a decision does not issue soon,” she wrote, “the applicants may return to this court.”

For now, though, Texas law enforcement officials will be allowed to arrest people suspected of crossing the border illegally. How long that remains true is now a question for the appeals court.

The three liberal members of the court — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — dissented.

“Today, the court invites further chaos and crisis in immigration enforcement,” Justice Sotomayor wrote. “Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens.”

Justice Sotomayor, joined by Justice Jackson, said the majority had rewarded the U.S. Court of Appeals for the Fifth Circuit for using an unseemly procedural gambit. The appeals court had entered an “administrative stay” of a trial judge’s ruling blocking the law.

Such administrative stays are meant to give courts time to consider whether to enter actual stays, and they are typically in place for brief periods. But the Fifth Circuit, Justice Sotomayor wrote, “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.”

She wrote that “the Fifth Circuit abused its discretion, and this court makes the same mistake by permitting a temporary administrative stay.”

The two justices’ dissent spanned 10 caustic pages. Justice Kagan issued a shorter and milder dissent, though she agreed that the majority should have not have been swayed by the appeals court’s procedural choices.


The court’s order addressed just one aspect of the clashes between the White House and Gov. Greg Abbott of Texas, who has embarked on a multibillion-dollar campaign to deter migrants, including by installing razor wire along the banks of the Rio Grande and a barrier of buoys in the river.

The surge in migrants entering the United States has intensified a fraught battle over immigration policy, underscoring deep divisions between and sometimes within political parties. It has led to the impeachment by House Republicans of the homeland security secretary and the failure of a bipartisan Senate deal to increase border security.

The law in Texas, sometimes called S.B. 4, also empowers state courts to order the deportation of migrants who enter the state without authorization. The administration, civil rights groups and El Paso County challenged the law, saying it interfered with the federal government’s power to set immigration policy and to conduct foreign affairs.

In 2012, in Arizona v. United States, the Supreme Court endorsed broad federal power in those areas by a 5-to-3 vote.


The court’s composition has changed since then, and officials in Texas are hopeful that the current justices will alter the balance of power between the federal government and the states in the realm of immigration.