In recent days, an unusual state border-security law has ricocheted back and forth between US federal courts, introducing novel questions of state and federal supremacy. Long disgruntled over the federal government’s perceived inadequate efforts to curb illegal immigration along its southern border, Texas enacted a state law that would enable it to take action in its own right. The law, SB 4, remains blocked as of the time of publication. But given its whirlwind journey through various levels of the federal judiciary in recent days, this could change.

In this explainer, we will explore the law itself, the core legal and policy issues, and the reasons its detractors and supporters feel so strongly about its potential entry into force.

Given the fluid nature of legal proceedings surrounding the law, we may update this article periodically. Any updates will be noted at the bottom of this page.

What is Texas law SB 4 and why is it so controversial?

If given the federal go-ahead, Texas legislation SB 4 would make it a state crime for a foreign national to cross the US border into Texas at any unauthorized point. The law would also empower state magistrates to issue removal orders to individuals found to be in breach of immigration policy.

It is not the prospect of deportation itself that makes this law so controversial; this is a well-known consequence of immigration violations the world over. The issue with SB 4 is that in the US, immigration law falls under federal jurisdiction. Improper entry into the US is a crime at the federal level. Federal officials already have the authority to issue deportation orders.

Thus, rather than creating a fresh mechanism for policy enforcement, SB 4 endeavors to create an additional layer of enforcement, potentially exposing violators to both state and federal prosecutions.

Would this not violate double jeopardy protections?

The US legal policy of double jeopardy generally protects individuals from being prosecuted twice for the same criminal offense. The Fifth Amendment of the US Constitution states in relevant part: “No person … shall be subject for the same offense to be twice put in jeopardy of life or limb.” As explained by Cornell Law School’s Legal Information Institute, though double jeopardy originally applied to the federal government, it was ultimately incorporated against states vis a vis the US Supreme Court case Benton v. Maryland.

There are, however, exceptions. Key here is the separate sovereigns doctrine, a legal doctrine established by Supreme Court case Bartkus v. Illinois (1959) and affirmed by Heath v. Alabama (1985), which established that an individual can be prosecuted for the same crime by different sovereigns — i.e. state and federal courts, or multiple state courts — so long as each has valid jurisdiction over the case.

With respect to SB 4, then, the core issue is whether Texas can legitimately assert jurisdiction over immigration cases.

Why would Texas want to spend its own resources on a policy that the federal government is already taking care of?

In recent years, many border state governors have been outspoken in their belief that the federal government, as led by US President Joe Biden, is not doing enough to curb illegal immigration.  Proponents of heightened border security cite drug trafficking and violent crime as chief concerns, as well as strained resources to support foreign nationals. Governors Greg Abbott of Texas and Ron DeSantis of Florida have both controversially and performatively demonstrated their positions by sending bus- and planeloads of foreign nationals to Democratic-leaning sanctuary cities like Washington, DC and Martha’s Vineyard, Massachusetts.

To this end, US immigration policy has become a core element of the country’s increasing political division in recent years. Generally, Republicans have blamed Democrats for being too weak on border control. During the primary debates leading up to Trump’s nomination as the Republican candidate for the 2024 elections, the party’s various presidential hopefuls competed to appear tough on immigration.

Does Texas have a valid argument to assert jurisdiction over immigration cases?

Article 6 of the US Constitution establishes the supremacy of US federal over state policy:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The federal government’s authority over immigration matters is established by Article 1, Section 8 of the Constitution to establish a “uniform Rule of Naturalization.” The federal Immigration and Nationality Act (INA) establishes the grounds and procedure for deportation of foreign nationals from the US.

Tying it all together, under the supremacy clause, Texas is not able to draft legislation that directly contradicts US immigration policy. But it is not necessarily proscribed from establishing supplemental or complementary state policy, which Texas argues should justify SB 4.

A brief timeline of the law’s enactment and journey through the courts:

• Nov. 7, 2023: SB 4 introduced in the Texas Senate by Charles Perry (R);
• Nov 9, 2023: SB 4 passed Texas Senate;
• Nov 14, 2023: SB 4 passed Texas House of Representatives;
• Dec 18, 2023: SB 4 signed into law by Texas Governor Greg Abbott;
• Dec 19, 2023: Las Americas Immigrant Advocacy Center, American Gateways and Texas’s El Paso County filed suit to enjoin SB 4 under the Supremacy Clause;
• Jan. 3, 2024: US Government filed suit to enjoin SB 4 under the Supremacy Clause and the Dormant Commerce Clause;
• Feb. 29, 2024: District court enters preliminary injunction against SB 4, blocking the new law;
• Mar. 2, 2024: Fifth Circuit places administrative stay on district court’s preliminary injunction, unblocking it;
• Mar. 4, 2024: Supreme Court Justice Samuel Alito stays Fifth Circuit’s decision, blocking the law once again;
• Mar. 5, 2024: SB 4 goes into effect on paper while blocked by Supreme Court;
• Mar. 18, 2024: Supreme Court vacates Alito’s stay, allowing SB 4 to go into effect.;
• Mar 18. 2024: Fifth Circuit vacates its administrative stay, blocking SB 4 hours after it went into effect.

What are the key takeaways from the law’s journey through the courts thus far?

US District Court – Western District of Texas, Austin Division

The US federal government’s court battle against Texas began in District Court. Joined by a handful of plaintiffs ranging from immigration advocates to Texas’ El Paso County, the US argued that the Supremacy Clause and Supreme Court precedent preclude states from enforcing their own immigration laws. The US Government also argued that SB 4 violates the Dormant Commerce Clause by regulating the movement of foreign nationals across international lines, potentially burdening foreign commerce.

SB 4’s detractors pointed to the landmark 2012 Supreme Court case Arizona v. US to reinforce this claim. In that case, the court struck down key provisions of Arizona’s SB 1070, otherwise known as the “show me your papers” law, which made it a state crime for foreign nationals not to carry certain immigration paperwork, made it a crime for undocumented immigrants to apply for jobs, and allowed state officers to arrest foreign nationals who committed any “removable” offense. The court held that these provisions were preempted by federal law, with Justice Anthony Kennedy writing that Arizona’s law violated the Supremacy Clause by intruding upon areas exclusively regulated by the US Congress.

In the same vein, the US federal government challenged Texas’s SB 4 on the basis that its provisions were preempted by federal law.

In its defense, Texas took a multi-pronged approach. On one hand, it relied on semantics, arguing that SB 4 does not usurp the federal government’s removal powers because rather than “removing” detainees, Texan authorities would merely “have an officer escort the [noncitizen] to a port of entry.” On the other, it argued that preemption does not apply because the federal government had abandoned its immigration enforcement responsibilities.

US District Judge David Alan Ezra disagreed, issuing a preliminary injunction on February 29 against SB 4 on the basis that the US would suffer “irreparable harm.” He reached this conclusion after finding that the law violated the Supremacy Clause by regulating the federal government’s “dominant and supreme interest in the field of immigration.”

Unmoved by Texas’ semantics argument, Ezra noted, citing Black’s Law Dictionary: “An officer takes a noncitizen, escorts them to another country, and departs after the noncitizen enters the other country. This is the same thing as a removal.” Regarding the abandonment argument, Ezra found that Texas failed to provide evidence for this claim. “The Court is sympathetic to Texas’s concerns at the border, but to say that the Biden Administration has “abandoned” the field of immigration is to take hyperbolic criticism literally,” Ezra wrote.

Ezra also agreed with the US on the Dormant Commerce Clause, concluding that by criminalizing the movements of foreign nationals across international lines, Texas undermined the federal authority’s power to regulate commercial affairs with foreign nations.

US Court of Appeals for the Fifth Circuit

After Texas appealed Ezra’s preliminary injunction, the US Court of Appeals for the Fifth Circuit then placed an “administrative stay” on the judge’s decision. This temporarily nullified the injunction’s effect while the appeals court considered a more permanent “stay pending appeal.”

US Supreme Court

Because the administrative stay allowed SB 4 to go into effect as scheduled, the law’s opponents challenged the stay in the US Supreme Court. Justice Samuel Alito initially stayed the Fifth Circuit’s decision on March 4, just one day before the law was set to go into force, and subsequently extended his own stay twice.

But on March 19, the whole court decided to leave the Fifth Circuit’s stay in place, putting SB 4 into effect for the first time. The majority in the court’s 6-3 decision did not explain their reasoning, but the concurring justices and those dissenting did.

Justice Amy Coney Barrett, joined by Brett Kavanaugh in concurring, wrote that the Fifth Circuit should first decide whether to grant a stay pending appeal before the Supreme Court itself acts.

However, Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, argued in her dissent that the Supreme Court gave “a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional.“

Justice Elena Kagan penned a separate dissent, saying that the groups challenging SB 4 met the criteria for a “stay pending appeal” at the Supreme Court level, which would have preempted any further activity in the lower courts until the Supreme Court reached a final decision on the injunction.

Back to the US Court of Appeals for the Fifth Circuit

Hours after the Supreme Court let the law go back into effect, the Fifth Circuit blocked it by dissolving its previous stay. The majority of the Fifth Circuit did not explain its reasoning either, but the lone dissenter in the court’s three-judge panel wrote:

A preliminary injunction is an extraordinary remedy that alters the status quo. A stay preserves the status quo while an appellate court reviews the lawfulness of that alteration. Earlier today, the Supreme Court of the United States restored an administrative stay so our panel could review the State’s request for emergency relief under Federal Rule of Appellate Procedure 8. I would leave that stay in place pending tomorrow’s oral argument on the question.

As of March 2024, what is SB 4’s status?

As it stands, SB 4 remains blocked. The Fifth Circuit heard oral arguments Wednesday about whether it should grant a stay pending appeal of Judge Ezra’s preliminary injunction. As the Fifth Circuit weighs its options, observers will have to wait and see whether SB 4 will go into effect yet again or remain blocked. Regardless, the law is looking down a long road ahead in the courts with no end in sight.

Editor’s note: As noted above, given the fluid nature of SB 4, we may update this article as it continues to be debated in US courts. If we do so, we will make a note here of the relevant dates and contents of updates.