CNN
—
A legal battle over a controversial Texas immigration law ultimately led to the Supreme Court largely striking down Arizona’s “show me your documents” law and banning the federal government’s “broad and unquestionable control” against immigrants. This could provide an opportunity to reconsider the historic ruling that reaffirmed the “authority”.
Texas’ SB4, which allows state authorities to arrest and detain people suspected of entering the country illegally, was heard again Wednesday in the 5th Circuit Court of Appeals in New Orleans.
The law is on hold while being considered for constitutionality after three judges blocked it. The same committee will hear arguments Wednesday.
The majority’s decision in last month’s 2-1 decision relied heavily on a 2012 Supreme Court case known as Arizona v. United States, in which the high court ruled against an Arizona law aimed at deterring illegal immigration. nullified several provisions of SB 1070.
Legal experts believe the Texas case could finally give the conservative-controlled Supreme Court an opportunity to review the federal government’s long-held control over immigration policy.
“This is probably one of the most fundamental changes the Supreme Court has made in immigration,” said Andrew Schoenholz, a Georgetown Law professor and immigration law expert, adding that the high court’s 2012 mentioned the possibility of overturning the ruling. . “That’s all the change Texas needs.”
When Texas Republican Gov. Greg Abbott signed the bill, he acknowledged that the issue could end up before the Supreme Court.
“While we believe Texas already has the constitutional authority to do this, we also welcome the Supreme Court’s decision to overturn the precedent set in the Arizona case,” Abbott told CNN’s Rosa Flores. ” he said.
Dennis Gilman, a law professor at the University of Texas, agreed that the state’s goal is to get a judge to overturn the Arizona ruling.
“It would have been incredibly difficult for the Fifth Circuit to uphold this law based on current Supreme Court precedent,” she said. “The Supreme Court is another matter. The Supreme Court can overturn its own precedents, and that’s clearly what Texas wants.”
SB 4 was initially blocked by a federal judge in late February in two lawsuits brought by the Biden administration, two immigrant advocacy groups, and El Paso County. Texas immediately appealed this decision to the Fifth Circuit. Meanwhile, the Supreme Court briefly allowed states to implement the law on March 19, but an appeals court put the law back on hold hours later.
The Arizona law is a notable example of what happens when states try to take immigration policy into their own hands.
Then-Arizona Republican Governor Jan Brewer signed the Supporting Our Law Enforcement and Safe Communities Act (known as SB 1070) into law in 2010.
The most important of the law’s provisions is that if authorities have a “reasonable suspicion” that a person is in the country illegally, police may It was possible to check a person’s residence status. This part of SB 1070 has become known by critics as the “Show me your paper” law.
SB 1070 also made it a state crime for “illegal immigrants” to fail to carry registration documents or other government identification. Prohibits persons who are not authorized for employment in the United States from applying for, soliciting, or performing work. It gave police the power to arrest illegal immigrants without a warrant if there was “probable cause” that the immigrant had committed a deportable crime.
Legal challenges to this law quickly followed. The Supreme Court upheld the “show me your documents” portion of the law and struck down three of her other portions.
Perhaps most importantly, the majority decision, handed down by Justice Anthony Kennedy, reaffirmed the federal government’s authority over immigration matters. The Five Judicial Alliance states that “federal authority to determine immigration policy is well established,” and that “part of that authority is based on the national government’s constitutional authority to “establish uniform naturalization rules.” “It’s based on that,” he said.
“The national government has significant authority to regulate immigration,” Kennedy wrote. “Although Arizona may have legitimate frustrations with the problems caused by illegal immigration while the illegal immigration process continues, the state may not pursue policies that undermine federal law.”
Gilman said the Arizona court’s decision is important because Texas’ SB 4 inherently includes the concept that the court struck down in this case.
“(Arizona’s) law criminalizing immigration status was struck down by the Supreme Court as violating federal authority to control immigration enforcement,” she said. “And that’s a very important part of what Texas law provides.”
Two of the three justices who dissented in the 2012 case, Justices Clarence Thomas and Samuel Alito, are still on the court. Justice Antonin Scalia died in 2016 (Justice Elena Kagan was disqualified in a 2012 case).
Jessica Bulman Posen, a professor at Columbia University Law School who specializes in federalism, said the argument advanced by Texas in defense of SB4 was similar to Scalia’s conclusion that the Arizona law was enacted for the purpose of enacting federal law. He said that this is the closest thing to the opposite opinion. Immigration laws should be made more effective.
“While the court didn’t think that was correct as a matter of explaining what was going on in Arizona, I think it was even more clearly wrong regarding Texas,” Bulman-Posen said of Arizona’s argument. Referring to the majority’s refusal, he said: He was trying to address the Obama administration’s alleged inaction on immigration issues.
“The idea that what[Texas]is doing is vindicating some kind of Congressional judgment or law against the executive that is not enforcing[the law]does not really misrepresent what is happening here. I don’t think that explains it,” she said. she said.
Mr. Abbott cited Scalia’s dissent when signing the bill.
“I recall that Justice Scalia wrote a dissenting opinion in that case that pretty much laid out what he thought was a legitimate way for states to proceed with their immigration enforcement process,” Abbott told CNN. Ta.
There is a fair amount of daylight between the divided 5th Circuit panel considering the legality of SB 4.
“The Supreme Court authorities and the detailed legal system governing who is allowed to remain in the United States and deportation procedures strongly indicate that Congress is in ‘occupation.’ [the] Chief Justice Priscilla Richman, in a ruling joined by Circuit Judge Irma Carrillo Ramirez, said the case covered the entire area of illegal entry, re-entry and deportation of noncitizens.
But Circuit Judge Andrew Oldham, a former Alito clerk, wrote a lengthy dissenting opinion last week saying he would allow Texas to enforce the law while legal challenges continue.
Oldham offered a more restrictive interpretation of the 2012 Arizona Supreme Court decision, saying it “does not suggest that states can never supplement any federal immigration law.”
He argued that the Arizona decision leaves parts of SB4 open to scrutiny, particularly the policy that allows Texas judges to order the deportation of immigrants.
“Arizona courts did not find that the state was preempted from deportation because of “extreme federal interests,” such as foreign policy or national security, as plaintiffs believe.” , wrote Oldham, who also previously served as general counsel for the state of Arizona. Abbott.
A Texas lawyer is making a similar argument.
“Arizona has not found that state laws regarding entry and removal are preempted on the ground, and Arizona does not find that state laws regarding entry and removal are preempted in the field, and that Arizona does not preclude the state from regulating entry and reentry or issuing return orders. nothing,” the lawyers wrote.
Whether these arguments would have any salience in the nation’s highest court if the case were brought before the justices is another matter.
“To the extent that the court reconsiders Arizona in this context, it would essentially be giving the state authority over admissions and removals in the immigration field. And that would be an extreme departure from precedent in our nation’s history.” “It will be,” Bulman-Posen said. “That must be quite a shock.”
This story has been updated with additional details.
CNN’s Rosa Flores contributed to this report.
