Fifth Circuit Panel Split on TX Border Bill

Southern Border Wall
Southern Border Wall | Image by Rebekah Zemansky/Shutterstock

A panel from the U.S. Fifth Circuit Court of Appeals heard oral arguments on Wednesday about whether a potential Texas border security law is unconstitutional.

The hearing was regarding a conjoined lawsuit filed by the U.S. Justice Department and the American Civil Liberties Union, attempting to have Senate Bill 4 blocked due to claims that it is unconstitutional. The bill makes unlawful entry into Texas a crime, as previously reported by The Dallas Express.

The DOJ and ACLU claim that the law should be blocked since the federal government handles immigration. Still, Texas has refuted these claims, saying that the state has a right to defend itself amidst an invasion from the southern border.

Judges were reportedly split about the arguments each side made during the hearing. Fifth Circuit Chief Judge Priscilla Richman asked state Solicitor General Aaron Nielson why the state has a right to enforce immigration law.

Richman noted that this lawsuit is “the first time it seems to me that a state has claimed that they had the right to remove illegal aliens,” reported NBC News.

Nielson responded to the remarks by saying, “I think that it’s certainly true that a state doesn’t generally have the power to, you know, admit or exclude. But what SB 4 does here is you get the order from the judge, and the person is taken to the port of entry.”

On the other hand, DOJ attorney Daniel Tenny told the appeals court that the biggest concern with Senate Bill 4 is that Texas would have to interact with other countries’ governments, a right not granted to the states, as reported by the Washington Examiner.

Judge Andrew Oldham seemed unsure about Tenny’s comments, per the Washington Examiner, questioning whether states could do a “single thing” to prevent unlawful migration other than cooperating with the federal government.

Tenny responded by claiming that “generally applicable state laws” are allowed, but no details were provided about these laws.

Although the panel included three judges from the Fifth Circuit, Judge Irma Carrillo Ramirez chose not to comment throughout the hearing, per CNN.

The Fifth Circuit Court panel concluded the hearing without making any official decisions and giving no indication about when a ruling could be expected.

This hearing was held just one day after the U.S. Supreme Court ruled that an administrative stay from another Fifth Circuit panel would be allowed to remain in place, paving the way for Texas to begin enforcing the law, as previously reported by The Dallas Express.

The ruling came from a 6-3 majority vote to allow the administrative stay to remain, with Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan dissenting.

Sotomayor wrote in an opinion after the vote that the Court gave “a green light to a law that will upend the longstanding federal-state balance of power and sow chaos.”

While the majority chose not to release an opinion on the decision, Justices Amy Coney Barrett and Brett Kavanaugh wrote in their own opinion that the Court has never ruled on whether an administrative stay must be removed or can remain in place.

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