Supreme Court Justice Samuel Alito has issued an administrative stay which temporarily blocks Texas’ strict immigration law, SB 4, after the Biden administration asked the court to intervene.
The law remains blocked until March 13 at 5:00 PM (EDT) to give the justices time to decide how to proceed. Justice Alito also gave Texas until the evening of March 11 to respond to the Biden administration’s request.
Earlier today, the Justice Department asked the Supreme Court to vacate a stay issued by the 5th Circuit Court of Appeals that overruled an injunction granted by a lower court last Thursday that had temporarily struck down the law.
“Absent this Court’s intervention, SB4 will go into effect at 12:01 am on March 10, 2024, profoundly altering the status quo that has existed between the United States and the United States in the context of immigration for almost 150 years,” Justice Department attorneys said in the filing.
The law, known as SB 4, would authorize local and state law enforcement to arrest migrants they suspect crossed into the state illegally. It would also give judges the power to order migrants to be transported to a port of entry and returned to Mexico regardless of their country of origin.
Texas Gov. Greg Abbott had celebrated last week’s ruling being overturned earlier in the day Monday, writing on social media, “BREAKING HUGE NEWS. Federal appeals court allows Texas immigration law to take effect. Law enforcement officers in Texas are now authorized to arrest & jail any illegal immigrants crossing the border.”
Migrants wait to be processed by the US Customs and Border Patrol after they crossed the Rio Grande and entered the US from Mexico, Oct. 19, 2023, in Eagle Pass, Texas.
Eric Gay/AP
The Biden administration has argued that immigration law is solely the responsibility of the federal government, and not local jurisdictions. It repeated that assertion again in Monday’s filing with the Supreme Court.
“This Court has long recognized that the regulation of entry and removal of noncitizens is inseparably intertwined with the conduct of foreign relations and thus vested ‘solely in the Federal Government,'” it wrote.
Texas has argued that it is within its right to arrest migrants because SB 4 is applicable under the State War Clause of the Constitution, which allows states to act when it is “actually invaded, or in such imminent danger as will not admit of delay. “
Abbott has repeatedly referred to the situation at the southern border as an invasion, saying in January, “I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself.”
The Justice Department said Monday that the clause “has no application here.”
“A surge of unauthorized immigration plainly is not an invasion within the meaning of the State War Clause,” Solicitor General Elizabeth Prelogar wrote in the filing. “And even if it were, the Clause does not permit States to contradict the federal government’s considered response to any invasion that has occurred. Here, Congress has taken that subject fully in hand by enacting the INA, and the State War Clause does not exempt Texas from the Supremacy Clause or the preemption principles it embodies.”
In last week’s ruling, Judge David A. Ezra took a similar stance, writing, “…surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution, nor is Texas engaging in war by enforcing SB 4.”
Gov. Abbott signed the law in December, sparking outcry from immigrant civil rights organizations across the country who fear the law cannot be enforced without racially profiling migrants. If convicted under the law, first-time offenders face up to six months in prison and ordered to return to Mexico. Repeat offenders can face up to 20 years in prison. Judge Ezra also wrote that the law would cause “irreparable harm” if it were to go into effect.
“If allowed to proceed, SB 4 could open the door to each state passing its own version of immigration laws,” Ezra wrote. “The effect would moot the uniform regulation of immigration throughout the country and force the federal government to navigate a patchwork of inconsistent regulations. SB 4 threatens the fundamental notion that the United States must regulate immigration with one voice.”
ABC News’ Mark Osborne, Luke Barr and Alexander Mallin contributed to this report.