A three-judge panel of the US Court of Appeals for the Fifth Circuit ruled Tuesday that a controversial Texas law, Senate Bill (SB) 4, will remain on hold as litigation continues.

SB4, the controversial Texas law that is the subject of this continued litigation, was originally signed into law in December 2023. If enforced, it 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. Historically, immigration policy has been the prerogative of the federal government. Improper entry into the US is a crime at the federal level, with federal officials already having the authority to issue deportation orders.

Chief Judge Priscilla Richman, writing for the majority, concluded that Texas did not successfully meet its evidentiary burden for a stay of the lower court ruling, which issued a preliminary injunction stopping the law’s enforcement pending litigation. To stay a lower court order, federal courts weigh a series of four factors: (1) the likelihood of the appellant to succeed on the merits of its case; (2) whether the appellant would be irreparably harmed without the order being stayed; (3) whether the placement of a stay would harm any other parties to the suit; and (4) whether the public interest is best served by the stay or not putting in place the stay.

Judge Richman found it unlikely Texas, as the appellant, would succeed on the merits of its case, saying:

The broadest exercise of federal discretion is the Executive’s decision not to pursue either civilly or criminally the very noncitizens whom Texas has drawn a bead upon in enacting new state laws. The discretion to pursue these same noncitizens likely lies exclusively with the Executive.

Judge Richman also found that while Texas would be harmed by the court not placing a stay on the lower court order, that harm to the US as a whole outweighed the potential harm done to Texas, citing diplomatic and international treaty concerns. Finally, Judge Richman found that while Texas has a public interest in the law moving forward, “state and local interests are subservient to those of the nation at large, at least with regard to matters regarding foreign relations.”

Judge Andrew S. Oldham dissented, writing:

To defend that global injunction, and to take from Texas its sovereign prerogative to enact a law that its people and its leaders want, plaintiffs must show that S.B. 4 is unconstitutional in every one of its potential applications. Plaintiffs likely cannot make that showing.

Las Americas Immigrant Advocacy Center, one of the plaintiffs in the suit, celebrated the ruling, saying, “This is the first step towards securing accountability for the state of Texas…Our fight continues to ensure this anti-immigrant law never sees the light of day.”

Texas officials have yet to respond directly to the ruling. However, Texas Governor Greg Abbott released a statement Wednesday claiming that Operation Lone Star, Abbott’s overall immigration plan of which SB4 is part, has been successful at curbing “illegal crossings” in Texas.

This ruling is the latest in the continuing legal battle over SB4. Senior District Judge David Alan Ezra for the Western District of Texas Austin Division originally placed the preliminary injunction on the enforcement of SB4 in late February, holding that SB4 is likely to be preempted by federal law due to the Supremacy Clause of the US Consitution. Then, the Fifth Circuit upheld the preliminary injunction on March 2. Texas appealed the preliminary injunction to the US Supreme Court, which then placed a temporary hold on the law. But then, on March 19, the Supreme Court lifted the hold after extending the hold twice, allowing the law to go into effect. On March 20, the Fifth Circuit again blocked enforcement of the law, pending oral arguments in the appellate court of the original preliminary injunction. Then, after oral arguments and the submission of an amicus brief by the country of Mexico, the court issued its Tuesday ruling.

Iowa passed a law similar to SB4 last week, which would make it a crime to enter the state after being deported or denied entry into the US.