Appeals court blocks Texas immigration law allowing police to make arrests in illegal border crossings

A federal appeals court has issued an order preventing Texas from arresting migrants suspected of entering the country illegally. The order comes hours after the Supreme Court gave the state the green light to enforce its controversial new immigration law.

The SB4 law makes it a crime for individuals to cross the US–Mexico border illegally and gives law enforcement the authority to charge them with a Class B misdemeanour, which carries a maximum sentence of six months in jail. Second offenders could face second-degree felony charges and up to 20 years in prison.

The decision to block the law by the 5th US Circuit Court of Appeals comes weeks after a panel on the same court cleared the way for Texas to enforce it.

But a majority verdict by a three-judge panel of the appeals court late on Tuesday ruled that the law should still not be enforced until further arguments are made before the court on Wednesday.

The Texas authorities had not announced any arrests made under the law while it was briefly enforceable.

The temporary order comes as a blow for Texas governor Greg Abbott, who has championed the need for aggressive legislation to deter migrants from crossing the border, with tough penalties for those who do so.

The bill, which Mr Abbott signed in December, was set to go into effect earlier this month. The Justice Department as well as immigration advocacy groups petitioned federal courts to intervene and prevent the law from taking effect in the meantime.

The Biden administration then asked the Supreme Court to stay the law, which it did earlier this month and again last week.

But earlier on Tuesday the conservative majority in the top court said they would wait to issue a formal ruling or opinion on the emergency order until the Fifth Circuit did, allowing enforcement of the law to proceed until then.

Texas has argued that the state was authorised to defend itself under Article I, Section 10 of the Constitution which allows states to engage in war on their own if they are “actually invaded”.

The Justice Department said the bill conflicts with federal law – typically the government body responsible for immigration enforcement.

The Supreme Court’s majority did not write a detailed opinion in the case, as is typical in emergency appeals. But the decision to let the law go into effect drew dissents from liberal justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.

“Although the Court today expresses no view on whether Texas’s law is constitutional, and instead defers to a lower court’s management of its docket, the Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo,” Justice Sotomayor wrote.

“The Court gives a green light to a law that will upend the longstanding federal-state balance of power and sow chaos,” he said in a blistering dissent joined by Jackson.

Supreme Court Justice and Donald Trump-appointee Amy Coney Barrett suggested her vote in favour of allowing the law to be enforced stemmed from technicalities in the appeals process rather than agreement with Texas on the substance of the law.

“So far as I know, this Court has never reviewed the decision of a court of appeals to enter – or not enter – an administrative stay. I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal,” she wrote in a concurring opinion joined by fellow conservative Justice Brett Kavanaugh.

Arrests for illegal crossings along the southern border hit record highs in December but fell by half in January, a shift attributed to seasonal declines and heightened enforcement. The federal government has not yet released numbers for February.

Some Texas officials have also sounded a cautious note about the new law. “A lot of the local police chiefs here, we don’t believe it will survive a constitutional challenge... We have no training whatsoever to determine whether an individual is here in this country, legally,” said Sheriff Eddie Guerra of Hidalgo County. He serves as president of the Southwestern Border Sheriffs’ Coalition representing 31 border counties from Texas to California.

Additional reporting by agencies