Supreme Court lifts stay on Texas law that gives police broad powers to arrest migrants at border

The U.S. Supreme Court allowed Texas on Tuesday to begin enforcing a law that gives local police power to arrest people they suspect of crossing the border illegally.

This is a change of direction from Monday when the court issued an indefinite stay on the law known as Senate Bill 4.

The Biden administration and human rights groups had hoped to keep enforcement of the law from happening while they argue the case in appeals court. They want a court to rule the law unconstitutional.

Lawmakers in Texas who passed the law say the legislation is necessary to stop illegal border crossings.

The Biden administration is suing to strike down the measure, arguing it’s a clear violation of federal authority that would hurt international relations and create chaos in administering immigration law.

Texas has argued it has a right to take action over what Gov. Greg Abbott has described as an "invasion" of migrants on the border.

Opponents have called the law, known as Senate Bill 4, the most dramatic attempt by a state to police immigration since an Arizona law more than a decade ago, portions of which were struck down by the Supreme Court. Critics have also said the Texas law could lead to civil rights violations and racial profiling.

A federal judge in Texas struck down the law in late February, but the 5th Circuit Court of Appeals quickly stayed that ruling, leading the federal government to appeal to the Supreme Court.

The majority did not write a detailed opinion in the case, as it 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.

Sotomayor wrote in a blistering dissent that allowing Texas to enforce the law "invites further chaos and crisis" and "upends the federal-state balance of power that has existed for over a century"

In a separate dissent, Kagan wrote that the type of order entered by the 5th Circuit "should not spell the difference between respecting and revoking long-settled immigration law."

Justice Amy Coney Barrett, joined by fellow conservative Justice Brett Kavanaugh, suggested in a concurring opinion that her vote in favor of Texas stemmed from the technicalities of the appeals process rather than agreement with the state 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.

Reaction has been swift from both sides.

Critics and human rights groups call the law racist and unconstitutional. They say it opens the door to racial profiling. 

But the state Republicans who passed the law say it’s necessary.

Brandon Judd is the president of the National Border Patrol Council.

"I think that what we're going to see is we're going to see a shift to New Mexico, Arizona and California," he said. "I think that the numbers in Texas are going to plummet because of an enforcement of a law."

Judd thinks enforcement of the law will start with an influx of arrests but then ultimately serve as a deterrent.

"People aren't going to want a criminal conviction on their record," he said. "Most of the people that are coming here, illegally, ultimately hope to gain citizenship or at least a legal status. When you have a criminal record, it makes it a whole lot more difficult to do that."

Law enforcement agencies in North Texas have responded to the Supreme Court’s order with a measured approach, highlighting the new law will mainly be a tool used along the border.

Tarrant County Sheriff Bill Waybourn said, "It is unlikely that law enforcement in North Texas will have knowledge of an individual’s illegal entry status to enforce SB4 due to this being primarily an on-view offense."

Dallas Police Chief Eddie Garcia indicated he does not want undocumented people in the city to fear police, adding in a statement, "The department cannot prohibit or limit the enforcement of immigration laws. However, residents of Dallas, victims and witnesses should continue to feel confident in working with the Dallas Police Department."

The Mexican government quickly condemned the ruling and the new state law, saying the country will not accept repatriations from the state of Texas. 

Judd says Mexico has the power to refuse anyone from Texas.

"Look at Title 42. Look at Remain in Mexico. All of those programs were dependent upon Mexico agreeing to what we were trying to do," he said. "So yes, Mexico can say we're not going to take these individuals back. But if they do that, then these people are going to be handed over to the border patrol or ICE for processing, for deportation, under that."

Dallas immigration attorney Belinda Arroyo says she’s shocked at the new development. 

"I think you had some that were clearly for it and some that were clearly against it," she said. "And in the middle, you had some that said, ‘Procedurally, we're just gonna kind of bat it down and say the Fifth Circuit needs to deal with it, and we'll get involved when it's time.’"

Texas Attorney General Ken Paxton and Gov. Abbott took to X.

The governor wrote, "We still have to have hearings in the 5th Circuit Federal Court of Appeals, but this is clearly a positive development."

"It allows Texas to go forward with the enforcement of this new law, and that's going to open up a number of other questions that we're going to have to confront very quickly," said constitutional law attorney David Coale. "Where are you going to put these people? If the state has the authority to arrest people and deport people, how? The federal government has a system to do that. Immigration courts’ criteria for deportation, places where they send people when they're being deported. I'm not sure what the Texas arrangements are for that."

The 5th U.S. Circuit Court of Appeals could potentially block the measure again, and either side can return to the Supreme Court once the 5th Circuit acts. But the dissenters said the court was wrongly allowing form to trump substance.

It appears the Appeals Court is fast-tracking things. Oral arguments were scheduled for April, but there will be a hearing by Zoom on Wednesday.

The Associated Press contributed to this report.