Judges on the 5th U.S. Circuit Court of Appeals appeared unreceptive to arguments by Texas' solicitor general Wednesday that the state's new immigration law should take effect because it "mirrors" federal law.
A three-judge panel of the court had ruled 2-1 late Tuesday that the measure, known as Senate Bill 4, should be temporarily blocked while the judges hear the case. Earlier Tuesday, the U.S. Supreme Court said it could take effect.
"Texas has a right to defend itself," state Solicitor General Aaron Nielson said, adding that the district court had acknowledged that "sometimes those associated with the cartels cross over the border with malicious intent."
The law, which Texas Gov. Greg Abbott, a Republican, signed in December, would allow police officers to arrest migrants and impose criminal penalties. It would also empower state judges to order the deportation of people to Mexico.
Chief Judge Priscilla Richman, a George W. Bush appointee, noted that states don't have police power to remove people from the U.S.
"This is the first time, it seems to me, that a state has claimed that they had the right to remove illegal aliens," Richman said.
Nielson responded, "I think that it's certainly true that a state doesn't generally have the power to, you know, admit or exclude. But what S.B. 4 does here is you get the order from the judge, and the person is taken to the port of entry."
The Texas solicitor general argued that the state aimed to be consistent with federal law.
"What we’re trying to do is to make sure that Congress, who sets the national immigration laws, that those laws are followed, and to the extent that we can’t enforce federal law, which we’re not claiming to do, we have laws that are the same as that with respect to these important provisions."
Justice Department lawyer Daniel Tenny told the appeals court judges that Texas had gone further with its legislation than Arizona did in its 2010 law, most of which the Supreme Court struck down.
Tenny also rejected Texas' assertion that the federal government isn't doing its job when it comes to immigration enforcement.
"It’s just wrong that the federal government isn’t acting in this area," he said. "The district court cited numerous statistics about the federal government’s active engagement in this area," he said.
Judge Andrew S. Oldham, a Donald Trump appointee, appeared more skeptical of the Biden administration's argument and pressed the Justice Department about why it argues that arresting people who cross into the U.S. in areas that aren't ports of entry is "exclusively federal."
Tenny said the Supreme Court has "consistently recognized" that immigration enforcement "is reserved for the national government."
In a statement after the Supreme Court's order Tuesday but before the law was put on pause by the appeals court, White House press secretary Karine Jean-Pierre called the Texas law "harmful and unconstitutional."
"S.B. 4 will not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border," she said. "S.B. 4 is just another example of Republican officials politicizing the border while blocking real solutions."
The Justice Department sued the state of Texas in early January challenging the new law, asserting that the U.S. Constitution gives the federal government the authority to regulate and control immigration and international borders.
“Under the Supremacy Clause of the Constitution and longstanding Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress," Associate Attorney General Vanita Gupta said in a statement at the time. "The Justice Department will continue to fulfill its responsibility to uphold the Constitution and enforce federal law.”
