Greg Abbott wakes up to bad news in border fight

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Texas Governor Greg Abbott woke up to bad news in his battle over Senate Bill 4, the state's controversial immigration law.

Overnight, a federal appeals court extended its hold on the Texas law, issuing a 2-1 decision early Wednesday that SB4 should remain blocked as litigation continues.

Under the law, local and state law enforcement would have been allowed to arrest, detain and remove individuals suspected of entering Texas illegally from other countries.

The legal fight over SB4 is between Texas officials, like Abbott, who argue that it's the only way to address the influx of migrants amid federal inaction, and the Biden administration, which argues that the law would encroach on almost 150 years of precedent where the federal government had the sole authority to regulate immigration.

"For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens—is exclusively a federal power," Judge Priscilla Richman wrote for the majority. "Despite this fundamental axiom, S.B. 4 creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal."

Newsweek reached out to Abbott via email for comment.

Wednesday's decision comes after last week's legal whiplash when the Supreme Court issued a ruling clearing the way for the Texas law to go into effect—a move that was halted by the appeals court hours later when it temporarily froze the law again. Before the Supreme Court ruled, Justice Samuel Alito had extended the administrative stay on SB4, indefinitely blocking enforcement of the law.

In the 2-1 vote, Richman and Judge Irma Carrillo Ramirez voted to block the law. Judge Andrew Oldham voted for SB4 to go into effect. Richman and Oldham are both Republican appointees by former Presidents George W. Bush and Donald Trump, respectively, while Ramirez was appointed by President Joe Biden. They are the same lineup of judges that issued the temporary block on March 19.

Last week, Mexico waded into the debate, filing a brief opposing the Texas law, warning that it would not take any migrants that Texas would send back across the border while enforcing it. The neighboring country said that it "categorically rejects any measure that allows state or local authorities to exercise immigration control, and to arrest and return nationals or foreigners to Mexican territory."

Texas Governor Greg Abbott speaks in Beaumont, Texas, on October 17, 2022. Abbott woke up to bad news in his battle over Senate Bill 4. Brandon Bell/Getty Images

On Wednesday, Richman acknowledged the tensions between the United States and Mexico over the law, warning that enforcement of SB 4 would result in a "high risk" of "international friction."

"Mexico has already protested S.B. 4 and signaled that the statute's enforcement would frustrated bilateral efforts, including noncitizen removals," she wrote.

In a lengthy dissent, Oldham argued that Texas "is forever helpless" if it isn't allowed to legislate on immigration amid the ongoing border crisis, writing that, "Texas can do nothing because Congress apparently did everything, yet federal non-enforcement means Congress's everything is nothing."

Supreme Court Justice Amy Coney Barrett recently increased pressure on the appeals court to make a decision, writing in last week's ruling, "The Fifth Circuit should be the first mover."

"Texas's motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5, almost two weeks ago," Barrett wrote. "Merits briefing on Texas's challenge to the District Court's injunction of S. B. 4 is currently underway. If a decision does not issue soon, the applicants may return to this Court."

Texas could potentially now go back to the Supreme Court and ask for the law to go into effect. The appeals court is scheduled to hold another hearing on April 3.

Update 03/27/24, 7:56 a.m. ET: This story was updated with additional information.

Update 03/27/24, 9:09 a.m. ET: This story was updated with additional information.

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