There has been a lot of legal back and forth regarding the Texas immigration law. Here is a handy FAQ.
1. What does the law do?
Senate Bill 4 was passed in 2023. It essentially creates a new class of state crime based around illegal entry to the country. State law enforcement will be required to arrest anyone they suspect of being in the country illegally, and judges can offer “orders to return” to Mexico in lieu of prosecution. Migrants who refuse to leave face up to 20 years in prison. Officials who refuse to pursue people suspected of being in the country illegally risk losing their jobs.
2. What’s the problem?
Texas Democrats and activist groups pointed out during debate that the bill gives far too much power to law enforcement and will likely lead to racial profiling.
The ACLU of Texas and the Texas Civil Rights Project both sued the state in December on behalf of two immigrants’ rights organizations, Las Americas Immigrant Advocacy Center and American Gateways. The U.S. Department of Justice filed suit a month later, combining the fight into one big case.
The legal arguments against SB 4 boil down to two main complaints. One, the state of Texas does not have this sort of authority over immigration, only the federal government does. Two, that the law is unconstitutional under the Fourth and Fourteenth Amendments because it targets people of color.
3. Is it currently enforced?
No.
4. I thought the U.S. Supreme Court upheld it?
Not really. The law has bounced up the chain to the high court since it was signed in December. In February, U.S. District Judge David Ezra halted implementation of the law. Ezra said the law could create a dangerous patchwork of state immigration laws that would fundamentally undermine the ability of the federal government to police the border.
Texas appealed the ruling to the 5th Circuit Court of Appeals, which set it aside. By then, it was clear the Supreme Court was going to eventually rule on the constitutionality of the matter.
However, the Supreme Court did not decide on the case’s merits this week. They merely ruled that the law could go into effect until the lawsuit had fully moved through the system. This kicked the case back down to the 5th Circuit.
5. Then what happened?
On Tuesday, the 5th Circuit once again blocked the implementation of the law, pending arguments in the case. These took place Wednesday morning. The 5th Circuit has not said when it will rule on the matter. It appears that the 5th Circuit felt rebuked by the high court for punting the case up to the Supreme Court under emergency guidelines.
6. Has anyone been arrested under the law?
According to testimony from Texas Solicitor General Aaron Nielson, no one was arrested under SB 4 during the brief window it was legal to do so. So far, it appears that the 5th Circuit is skeptical that Texas has the right to enforce immigration in this manner.
