Texas ‘Went Too Far’ on SB4, Solicitor General Says

EL PASO, TEXAS - APRIL 02: Texas National Guard soldiers install border fencing layered with concertina wire near the Rio Grande river on April 02, 2024 in El Paso, Texas. |

A U.S. Fifth Circuit Court of Appeals panel heard arguments from Texas and the federal government on Wednesday about whether a state law making unlawful entry into the state a crime should be allowed into effect.

The hearing stems from a conjoined lawsuit by the U.S. Justice Department (DOJ) and the American Civil Liberties Union (ACLU) attempting to have Senate Bill 4 blocked due to claims that it is unconstitutional.

Senate Bill 4 makes unlawful entry into the state a crime and allows state law enforcement officers to apprehend those suspected of violating the law.

The DOJ and ACLU claim that the federal government is the only entity that has a right to handle immigration, and the potential state law would allow Texas to infringe upon those rights.

This hearing was the second by the Fifth Circuit panel, and it came shortly after judges seemed skeptical about whether the bill was constitutional during oral arguments on March 20, as previously reported by The Dallas Express.

Texas Solicitor General Aaron Nielsen said during the April 3 hearing that the law is constitutional as it does not allow the state to deport migrants who are found to be in violation of the border-enforcement law.

“Texas takes them to the port of entry. And the United States then decides what to do,” Nielsen explained, per KERA News.

Nielsen added that the law was created to push “the line of Supreme Court precedent” and that the state had to create the law to manage the crisis along the southern border.

“To be fair, maybe Texas went too far,” he conceded, per The Texas Tribune. “That’s the question this court is going to have to decide, but that’s the context of which we are here [sic].”

Cody Wofsy, an attorney representing the ACLU of Texas, disputed Nielsen’s claims that the law would be constitutional, adding that it would completely change how immigration functions in the country.

“This is going to be a massive new system if it’s allowed to go into effect,” said Wofsy, per the Austin American-Statesman.

Texas officials including Lt. Gov. Dan Patrick have maintained that it is within the state’s constitutional right to defend its borders because the federal government has not managed to do so.

“Texans are tired of the Biden Administration’s abdication of their constitutional responsibility to enforce the southern border. As the Administration’s lack of action endangers Texans and all Americans, the passage of SB 4 will support Texas’ historic efforts to secure the border and maintain public safety,” said Patrick in a statement after the bill passed in the Texas Senate.

The court adjourned the April 3 hearing without providing a ruling and giving no indication of what to expect from a potential decision.

While it remains unclear whether the state will be allowed to enforce the law, concerns have arisen about what steps Texas law enforcement would take if future rulings favor the Lone Star State.

Lt. Chris Olivarez, spokesperson for the South Region’s DPS, has contended that the bill “was not designed for interior enforcement” and the agency would only be able to arrest those who are witnessed unlawfully crossing into the state if it goes into effect, as reported by The Dallas Express.

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