The US Supreme Court on Tuesday lifted a stay that prohibited the enforcement of a Texas law that criminalizes illegal entry into the state from other countries, allowing the law to go into effect.
While Justice Samuel Alito indefinitely extended the stay Monday afternoon, he found himself among the six justices voting to lift the stay today. Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan dissented from the decision to vacate the stay while Justices Amy Coney Barret and Brett Kavanaugh concurred.
In late February, a federal district judge issued a preliminary injunction preventing the law from being enforced, noting that the Supremacy Clause of the US Constitution and US Supreme Court precedent place immigration matters under federal jurisdiction. The US Court of Appeals for the Fifth Circuit later blocked that injunction, allowing the law to go into effect. The Supreme Court then stayed the law’s enforcement on March 4 and extended the stay twice.
Tuesday’s decision reverses the Supreme Court’s previous stay.
While the six justices in favor of the reversal did not explain their reasoning, the concurring and dissenting justices did. Justice Barrett highlighted that the Fifth Circuit’s order allowing the law to go into effect was an “administrative stay” instead of a “stay pending appeal.” Barret wrote that because administrative stays are intended to be short-term in nature, “the Fifth Circuit should be the first mover. It should apply the Nken factors and decide the motion for a stay pending appeal.”
The Nken factors refer to a four-factor test developed in 2009’s Nken v. Holder which courts use to decide whether to grant a stay pending appeal in a case.
In her dissent, joined by Justice Jackson, Justice Sotomayor argued that the Texas 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.” “[T]he Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo,” she added.
Texas governor Greg Abbott called the Supreme Court’s decision a “positive development” but noted that his team “still [has] to have hearings in the [Fifth Circuit]” to defend the law. On the other hand, White House Press Secretary Karine Jean-Pierre criticized the high court, saying in part:
We fundamentally disagree with the Supreme Court’s order allowing Texas’ harmful and unconstitutional law to go into effect. S.B. 4 will not only make communities in Texas less safe, it will also burden law enforcement, and sow chaos and confusion at our southern border. S.B. 4 is just another example of Republican officials politicizing the border while blocking real solutions.
Texas’s law, SB 4, makes it a misdemeanor offense for foreign nationals to enter the state from abroad unless arriving at a “lawful port of entry,” upgrading the offense to a felony for subsequent convictions. It also gives magistrates the power to order persons found violating the law to return abroad in lieu of prosecution.