This post is by Mikayla Minton, a senior from Linfield University in McMinnville, Oregon. Ms. Minton is originally from Humboldt County, California and is majoring in Law, Rights, and Justice and minoring in Journalism and Media Studies. During the spring 2024 semester, she interned at Dzubow & Pilcher and attended American University. Ms. Minton plans on continuing her studies and passions in law school.

Last month, the Supreme Court ruled to allow a controversial immigration law to take effect in Texas. The ruling concerns Texas Senate Bill 4 (2023), known as SB4, which allows state officials to arrest and deport migrants who enter the state illegally. While the Court's ruling involved a preliminary issue in the case, it telegraphed the Justices' views on state--as opposed to federal--oversight of immigration.

Many conservative lawmakers in the Lone Star State and across the country see the Court's decision as a win. Meanwhile, the Court's liberal Justices as well as officials at the Department of Homeland Security described the possible effects of SB4 as "chaos."

What is the significance of SB4 and of the Supreme Court's ruling? How might it affect immigration law and states' rights? And what impact will it have on immigrants?

Senate Bill 4 make unauthorized entry into Texas a state crime. It allows local and state police in Texas to arrest undocumented immigrants and people suspected of being in the U.S. illegally. It also allows state law enforcement to send undocumented migrants to Mexico--regardless of their country of nationality. Under SB4, crossing the border illegally is a "Class B misdemeanor, carrying a punishment of up to six months in jail." "Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison."

The Texas Legislature passed SB4 without input from Mexico. According to a press release from the Mexican government, "Mexico will not accept, under any circumstances, repatriation by the State of Texas." Mexicans also worry that the law will lead to increased tension with the United States, their largest trading partner.

Liberal Supreme Court Justices, DHS, and the Mexican government are not the only groups opposed to SB4. Some police chiefs and local officials in Texas explained that it would be difficult to enforce SB4 given other law enforcement priorities and community concern. The mayor of El Paso noted that they would always enforce the law, but their police department was short staffed: "Our law enforcement responses are always priority-driven," he said, "and our number one priority has and will continue to be public health and safety, not enforcing immigration law."

The Biden Administration also opposes SB4, and in January of this year, the Justice Department sued Texas to block the law. DOJ's position is that immigration is exclusively the province of the federal government, and that if individual states are allowed to regulate migration, it will create 50 different foreign policies. Also, state and local law enforcement does not have the expertise to determine whether a particular non-citizen is "illegal." That's because there are dozens of different types of lawful statuses in the United States, including for example, asylum pending. In addition, the Administration is concerned about the law's impact on people of color and others who might appear "foreign."

The Justice Department lawsuit has been partially successful, in that SB4 is currently on hold and not yet being enforced. That's thanks to the U.S. Court of Appeals for the Fifth Circuit, which stayed implementation of the law until it can issue a decision on the merits of the case (i.e., determine whether SB4 violates the Constitution). Texas appealed that ruling to the U.S. Supreme Court, which held that SB4 could go into effect while the Fifth Circuit considers the constitutionality of the law. Shortly after the Supreme Court's decision, the Fifth Circuit again put SB4 on hold, which is where things stand today.

Whatever the Fifth Circuit decides, the case is likely to return to the U.S. Supreme Court. Given that a majority of Justices have already held that SB4 could go into effect while the Fifth Circuit reviews the case, it seems likely that these same Justices would find the law constitutional. For non-citizens and anyone who might appear to be a non-citizen, that is a frightening prospect.

If SB4 is ultimately allowed to go into effect, the damage will not be confined to Texas. Other Republican-led states would likely pass similar legislation, and so anyone perceived as foreign will be at risk. Racial profiling will likely become worse. Mistrust between non-citizens and police will increase. Immigrants, who already face employment and housing discrimination, will become even more vulnerable. Relations with Mexico (and maybe other countries) will be damaged. And our country's ability to pursue a unified foreign policy will be impaired.

We are currently waiting for a ruling from the Fifth Circuit on SB4. If the court blocks the Texas law, it will likely reach that decision based on a U.S. Supreme Court ruling from 2012 in the case, Arizona v. United States. There, the Supreme Court struck down Arizona’s "show me your papers" law that allowed state law enforcement to check a person's documentation if there was "reasonable suspicion" to believe that the person was in the U.S. unlawfully.

While the Fifth Circuit is bound by Supreme Court precedent, the Supreme Court itself is not. The make-up of the Court has changed since Arizona v. United States, and the new conservative super-majority has shown itself willing to overturn precedent decisions that it opposes (see for example, Roe v. Wade). If Arizona v. United States is overturned, and if SB4 is permitted to go into effect, we can expect that immigrants and minorities in Texas and throughout the country will be harmed. Adding insult to injury, they will know that they are not just unwelcome, but that they are viewed as criminals.

For now, we will stay tuned for a decision from the Fifth Circuit, and hope that the court does not allow SB4 to go into effect.

Originally posted on the Asylumist: