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The original was posted on /r/keep_track by /u/rusticgorilla on 2024-03-20 11:56:48.

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“Show me your papers” law

The U.S. Supreme Court allowed Texas to enforce its strict state immigration enforcement law in a 6-3 decision yesterday.

Background

The law, known as SB 4, gives state and local authorities the power to arrest people suspected of illegally crossing the Texas-Mexico border. Upon being convicted of illegal entry and completing a term of imprisonment, a judge must order “the person to return to the foreign nation from which the person entered or attempted to enter.” Alternatively, a judge may dismiss the charges if the person agrees to return to Mexico voluntarily. The process contains no provisions that ensure due process for migrants or allow them to seek humanitarian protection. It further criminalizes Black, brown, and indigenous people who may be detained—regardless of legal status—for no other reason than the color of their skin.

Civil rights groups sued the state in December, arguing that “S.B. 4 is patently illegal” for “violat[ing] the Supremacy Clause of the United States Constitution” by usurping the “federal government’s exclusive immigration powers.”

S.B. 4 creates a new state system to regulate immigration that completely bypasses and conflicts with the federal system. It allows state officers to arrest, detain, and remove individuals from the United States and mandates removal for those who are convicted of the new state crimes of illegal entry and reentry—all without any input or involvement whatsoever from federal officials.

S.B. 4 requires state officers to make determinations of federal immigration status and to incarcerate and remove noncitizens pursuant to these determinations, but it does not provide noncitizens with any of the mechanisms or pathways to apply for or receive federal protection from removal. Moreover, the system prohibits state courts from pausing cases to obtain determinations of status from the federal government or abstaining while federal immigration proceedings take place.

The U.S. Department of Justice later also sued Texas, alleging that the state’s “efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

U.S. District Judge David Ezra, a Reagan appointee, issued a preliminary injunction blocking the law at the end of last month. “[T]he Supremacy Clause and Supreme Court precedent affirm that states may not exercise immigration enforcement power except as authorized by the federal government,” Ezra wrote. “The United States will suffer immediate irreparable harm if SB 4 takes effect,” he continued, through frustrating Department of Homeland Security priorities, disrupting foreign relations, and preventing the nation from fulfilling its human rights obligations.

Texas immediately appealed to the 5th Circuit, which issued a temporary administrative stay of Judge Ezra’s order to take effect on March 9 without Supreme Court intervention. The use of an administrative stay rather than a stay pending appeal will become important. For now, know that administrative stays are normally employed to freeze legal proceedings to preserve the status quo (i.e. the law of the land pre-SB 4) until judges can rule on a party’s request for a stay pending appeal (when further arguments will occur).

The DOJ appealed to the U.S. Supreme Court, asking the justices to vacate the stay and leave Judge Ezra’s ruling in place while legal proceedings play out.

The ruling

A presumably six-justice majority ruled in favor of Texas, allowing SB 4 to take effect. Justices Amy Coney Barrett and Brett Kavanaugh were the only conservatives to go on record, with Barrett writing that the 5th Circuit’s unusual choice to use an administrative stay exempts the action from review:

If the Fifth Circuit had issued a stay pending appeal, this Court would apply the four-factor test set forth in Nken v. Holder—including, as relevant in this Court, an assessment of certworthiness—to decide whether to vacate it. But the Fifth Circuit has not entered a stay pending appeal. Instead, in an exercise of its docket management authority, it issued a temporary administrative stay and deferred the stay motion to a merits panel, which is considering it in conjunction with Texas’s challenge to the District Court’s injunction of S. B. 4. Thus, the Fifth Circuit has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture…So far as I know, this Court has never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay. I would not get into the business.

In other words, Barrett recognized the gamesmanship of issuing an administrative stay but chose not to intervene, effectively blessing the 5th Circuit’s ploy to allow SB 4 to take effect without proper review. She reveals this fact by saying “the time may come…when this Court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly…If a decision does not issue soon, the applicants may return to this Court.” No conservative justice, including Barrett, wrote about the impact of letting SB 4 take effect.

Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented, explaining why the 5th Circuit’s stay was misused:

An administrative stay…is intended to pause the action on the ground for a short period of time until a court can consider a motion for a stay pending appeal. For that reason, at a minimum, administrative relief should (1) maintain the status quo and (2) be time limited. The Fifth Circuit’s administrative stay here was neither, and thus constituted an abuse of discretion.

Here, the Fifth Circuit’s administrative stay upends the status quo because it allows S. B. 4—a brand new state law that alters the delicate balance of federal and state power in immigration enforcement—to go into effect. The District Court preliminarily enjoined S. B. 4 and declined to stay that injunction. The Fifth Circuit did not need to enter an administrative stay to preserve the status quo; the District Court’s decision already achieved that. The Fifth Circuit abused its discretion in entering the status-altering administrative stay.

The Fifth Circuit’s administrative stay is also temporally unbounded. Because the Fifth Circuit deferred consideration of the motion for a stay pending appeal, the administrative stay is likely to last until the merits panel receives briefing, hears oral argument, and renders a decision on either Texas’s appeal or at least Texas’s motion for a stay pending appeal. That timeline would leave the administrative stay in effect for well over a month.

If allowed to take effect, Sotomayor wrote, SB 4 “will transform the balance of power at the border and have life-altering consequences for noncitizens in Texas.”

Justice Elena Kagan, in her own dissent, wrote that she does “not think the Fifth Circuit’s use of an administrative stay, rather than a stay pending appeal, should matter. Administrative stays surely have their uses. But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

Reverberations and reversal

Hours after the Supreme Court allowed SB 4 to take effect, Mexico’s Ministry of Foreign Affairs released a statement condemning the law for “criminalizing” migrants and “encouraging that separation of families, discrimination and racial profiling that violate the human rights of the migrant community.” Consequently, Mexico declared that it “will not accept, under any circumstances, repatriations by the State of Texas,” setting up a major international incident should Texas try to deport individuals.

Luckily, late last night, a new panel of the 5th Circuit stepped in and ‘voted 2-1 to dissolve the administrative stay issued by a different panel earlier this...

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