Supreme Court: Maybe Texas Can Go Ahead And Pretend It's At War With Mexico. Might Be Fun!
'Constitution? We don't need to follow no stinking Constitution!'
Like a substitute teacher letting that one creepy kid who isn’t allowed to visit the Humane Society unaccompanied anymore take the class guinea pig home for the weekend, the US Supreme Court on Tuesday did something that should be unthinkable. To wit, it decided to let Texas go ahead and enforce its own state immigration law that subverts federal authority, at least while the case goes through the appeals process.
Hours after that, the Texas law was put on hold again when an appeals court issued another stay and scheduled a hearing to be held today, acting on a request from two of the Supremes in the majority. Court decisions come and go so quickly here! So sorry, Texas, you can’t start arresting migrants on your own say-so just yet.
We should note at the outset that all of this mess involves procedural fighting over whether to let the law go into effect while it’s being appealed, not the constitutionality of the law. A federal district judge stayed enforcement of the law March 1 because it sure looked unconstitutional to him.
The Supremes’ ruling yesterday was a jaw-droppingly terrible decision, considering that a century and a half of precedent has held that the federal government has sole authority when it comes to setting and enforcing immigration law. Texas’s Senate Bill 4, passed last year, makes it a state misdemeanor for anyone to enter Texas from another country without papers (a second offense is a felony), allows Texas law enforcement to arrest anyone they believe is in the state illegally, and gives Texas judges the authority to order migrants be deported to Mexico — regardless of whether Mexico accepts them.
It was an emergency application, so there was no opinion to explain the order, the New York Times reports (gift link). But two of the five justices who voted to let Texas do its own immigration thing, Justices Amy Coney Barrett and Brett Kegstand, filed a concurring opinion that called on the Fifth Circuit Court of Appeals to decide quickly if the law should be put on hold while the appeal continues. Barrett added, very nonspecifically, that “If a decision does not issue soon, […] the applicants may return to this court.” That’s what prompted the Fifth Circuit to haul judicial ass Tuesday evening (Washington Post gift link), issuing another temporary stay, just a little bit longer.
In the brief period when it looked like SB 4 would be allowed to go into effect right away, the government of Mexico said hell no it would not be admitting anyone deported by a Texas state judge, because apparently Mexico knows how the US Constitution works better than Republicans on the US Supreme Court do. In its statement, Mexico condemned the Texas law for “encouraging the separation of families, discrimination and racial profiling that violate the human rights of the migrant community.”
The idea that Texas can make up its very own immigration laws is exactly what US District Judge David Ezra warned against in his March 1 opinion putting SB 4 on ice, warning that “SB 4 threatens the fundamental notion that the United States must regulate immigration with one voice.” Yes, even if some governors with 2028 presidential aspirations want to yell “fuck you” and burn everything down. Ezra also noted that if Texas were to deport migrants who might be eligible for asylum, that would violate their rights under the Constitution (yes, even noncitizens have rights if they’re on US soil) as well as international treaties.
The three sane members of the Supreme Court, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, all dissented yesterday.
“Today, the court invites further chaos and crisis in immigration enforcement,” Justice Sotomayor wrote. “Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens.”
We are not even going to get into the complicated procedural fuckbungle that led the case to the Supreme Court when the Fifth Circuit agreed to hear Texas’s appeal of Ezras’s ruling. It involved an “administrative stay” instead of a more proper “stay pending appeal,” and your New York Times gift-linked article goes into it in some detail. But now that the Fifth Circuit has taken the cue from Barrett and Kavanaugh and will hear oral arguments today, it all seems to be moot, except, as a Times update puts it, for the confusion.
What happens now? The Fifth Circuit will hear oral arguments today on whether SB 4 should remain on hold while the case is appealed — which it shoulda done in the first place — and on April 3 it will finally consider arguments on the law’s constitutionality. So whatever the appeals court decides about staying enforcement after the hearing today, that will undoubtedly go back up to the Supremes.
University of Texas at Austin law professor Steve Vladeck summed up the mess pretty well for the Texas Tribune, calling it “indefensibly chaotic.”
“Even if that means SB 4 remains paused indefinitely, hopefully everyone can agree that this kind of judicial whiplash is bad for everyone,” he said.
Then again, it’s pretty much how everything has worked, or not worked, for the last decade or so, and we might as well just get used to not being sure of anything ever again, have a nice day the end.
[NYT (gift link) / NBC News / Vox / WaPo (gift link)]
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Alright, let’s nip this “let em secede, the Red-Hell Libs can flee if they wanna” shit in the bud. Yeah, wouldn’t it be cool to be able to pull up stakes and split. None of us have ever even thought about it before. It’s probably just as easy as clicking our heels 3 times and wishing real hard.
IT. AINT. THAT. EASY.
There’s myriad reasons for blue people to be in red states and not one of em is because of we're cool with the political landscape.
Good thing Texas has no actual problems to address, like, say, a shoddy, second-rate power grid. Perhaps posturing about a non-existent "border" crisis will make August and September seem cooler.