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Beginning this moment, Texas law enforcement officers can arrest any person in the state they believe crossed illegally. And judges can now order people to walk back into Mexico at threat of 20 years in prison if they don't—even if the person has federal permission to be here.
https://twitter.com/stevenmazie/status/1770151826479825096
Crucial context: Barrett and Kavanaugh both say they are not making any decision right now because of the weird procedural posture by which it made it to the Court's shadow docket, but say if the 5th Circuit doesn't act ASAP, they may change their minds.
https://twitter.com/ReichlinMelnick/status/1770154456824287606
SO what does this mean? Well, this means SB4 is in effect—for now. But the case is likely going back to the Supreme Court on an emergency poster within the next month, either because the 5th Circuit rules officially on the stay motion, or because they wait too long and don't.
I agree with this point. Both Barrett and Kavanaugh basically opted out of deciding the merits—and for all we know, so did Roberts, Gorsuch, Thomas, and Alito, who gave no indication of why they ruled how they did.
Regardless, the 5th gets leeway.
Regardless, the 5th gets leeway.
https://twitter.com/mjs_DC/status/1770155730756133139
emergency posture.*
The bigger point here is that once again, this SCOTUS permits the 5th Circuit to temporarily overturn long-standing immigration law rules—even if they will eventually strike down the law.
They did this with Remain in Mexico in 2021 and the enforcement priorities in 2022.
They did this with Remain in Mexico in 2021 and the enforcement priorities in 2022.
In both cases, SCOTUS refused a Biden administration request to block enforcement of unprecedented decisions—ordering DHS to restart Remain in Mexico, stripping the DHS Secretary of authority to issue enforcement priorities—only to eventually rule in Biden's favor months later.
Here, we have an even more perverse situation, with SCOTUS letting an unconstitutional law go into effect temporarily, based on a transparent attempt by the 5th Circuit to avoid review.
And yes, Texas will likely lose eventually. But there will be damage done in the meantime.
And yes, Texas will likely lose eventually. But there will be damage done in the meantime.
I obviously have no special knowledge of why the Justices who didn't opine today ruled the way they did.
But with this happening 3 years in a row, the implication is that the Justices are using these shadow docket orders to send a message about the border—and nothing more.
But with this happening 3 years in a row, the implication is that the Justices are using these shadow docket orders to send a message about the border—and nothing more.
They want Biden to crack down harder. Which is a fundamentally political kind of thing they're not allowed to have any say on, so instead they're letting these orders go into effect for now.
It's a show of power.
It's a show of power.
https://twitter.com/breamut/status/1770159692548911314
Final note: I want to emphasize again that this is NOT the end of the story.
The 5th Circuit will either convert its administrative stay into a formal stay in the next few weeks, after which DOJ goes back to SCOTUS, or they won't, in which case DOJ goes back to SCOTUS.
The 5th Circuit will either convert its administrative stay into a formal stay in the next few weeks, after which DOJ goes back to SCOTUS, or they won't, in which case DOJ goes back to SCOTUS.
So we should expect to be back here again in a matter of weeks, and we'll find out whether or not SB4 is a short-lived law which was only in effect for a brief period of time, or whether it gets to last for longer.
Utter nightmare for anyone arrested in the next few weeks tho!
Utter nightmare for anyone arrested in the next few weeks tho!
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![For that reason, “[w]here Congress occupies an entire field, as it has in the field of [noncitizen] registration, complementary state regulation is impermissible.” Id. at 401. “Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. In sum, Sections 51.02 and 51.03 of SB 4 cannot be differentiated from Section 3 of SB 1070. Tex. Penal Code § 51.02–51.03. Both laws attempt to vest a state with the power to punish federal immigration offenses. But the “basic premise of field preemption,” reaffirmed in Arizo...](https://pbs.twimg.com/media/GHhMsg9XEAAEAj7.png)
