The Texas immigration law that would empower the state and local police to arrest people suspected of entering the U.S. illegally is back on hold while a different panel of the U.S. 5th Circuit Court of Appeals decides how to proceed.
The back-and-forth decisions, or nondecisions, from the appeals court have confused and confounded the Biden administration and the Supreme Court.
It’s unclear whether or when the Texas law will go into effect.
Last evening, a new appeals court panel in a 2-1 vote said it would hold a hearing this morning to decide whether to put the Texas law on hold indefinitely while its constitutionality is decided by a third group of judges.
This came just a few hours after the Supreme Court in a 6-3 vote turned down the Biden administration’s plea to keep the law on hold.
But Justices Amy Coney Barrett and Brett M. Kavanaugh explained their votes by saying the 5th Circuit had yet to rule on the constitutionality of the Texas law, and they were unwilling to skip ahead to decide such an important question.
The four other justices did not explain their votes, while the court’s three liberals voted to block the Texas law for now.
The procedural meltdown highlights two different tasks before an appeals court.
On the one hand, the judges must hear appeals and issue rulings on disputed areas of law. But separately, the judges must also decide on a temporary basis whether a new and disputed law or regulation may go into effect immediately or instead remain blocked while the appeal is pending.
A rotating panel of three judges hears those motions seeking a temporary relief.
Increasingly, however, those temporary appeals are coming directly to the Supreme Court, forcing the justices to decide on a fast-track basis whether to allow a disputed measure to take effect.
Texas Gov. Greg Abbott has championed the new and more aggressive approach to immigration enforcement, insisting the state must take action because of what he calls lax enforcement by the Biden administration.
But doing so would require the Supreme Court to reverse course on decades of rulings that say the federal government, not the state, has the power to enforce the “entry and removal” of persons at the border.
On Feb. 29, a federal judge in Texas issued an injunction to block the new state law from taking effect on the grounds it conflicted with federal law. When the state appealed, a three-judge panel of the 5th Circuit set aside the judge’s ruling and issued what they described as a “temporary administrative stay” that lasted for one week.
That allowed time for the Biden administration to ask the Supreme Court to intervene. But there was no clear ruling before them.
The justices have been wary of acting on these fast-track disputes. Justice Barrett in particular has objected to that process. She said the court should slow down and wait for a final ruling from the appeals court.
But that in turn requires the appeals court panel to decide, and the 5th Circuit has yet to do that.
Mexico’s government said Tuesday after the Supreme Court refused to put the law on hold that it rejected any state or local attempts “to exercise migration control and to arrest and return nationals or foreigners to Mexican territory.
“Mexico recognizes the importance of a uniform migration policy and the bilateral efforts with the United States to ensure that migration is safe, orderly and respectful of human rights, and is not affected by state or local legislative decisions,” Mexico’s foreign ministry said in a statement. “In this regard, Mexico will not accept, under any circumstances, repatriations by the State of Texas.”