The 5th U.S. Circuit Court of Appeals heard arguments Wednesday from Texas and the federal government on whether Senate Bill 4, a law that aims to establish state crimes and penalties for migrants who illegally enter the state, should remain on hold.
“What Texas has done here is they have looked at the Supreme Court’s precedent, and they have tried to develop a statute that goes up to the line of Supreme Court precedent, but allows Texas to protect the border,” Texas Solicitor General Aaron Lloyd Nielson said during the hearing. “Now, to be fair, maybe Texas went too far. And that’s the question this Court’s gonna have to decide. But that’s the context of which we are here.”
Nielson said Texas had looked at the Supreme Court precedent and the laws that Congress has enacted to develop a law that goes “up to the edge, but no further.”
He went back to some of the questions Chief Judge Priscilla Richman asked Nielson during a hearing over the law on March 20.
“Your Honor asked, What would happen if Texas delivered someone to the port of entry … and the United States says, ‘OK, all right. Go back into Texas.’ Can Texas rearrest? What do you do in that circumstance?” Nielson said.
He said Texas is in disadvantage because no Texas court has yet interpreted SB 4.
The SB 4 court battle, see story here
“I can say on behalf of the Office of Attorney General, we have looked at this provision and it is our position that in that circumstance that Texas could not rearrest the person,” Nielson said. “The reason so is section 5104, which says that an alien must refuse to comply with the order, which would not be the case if the United States or Mexico says no. … It’s not a secret that if a federal law allows Texas to go further, Texas would go further. But that is the line that Texas perceives federal law. And that is as far as it goes.”
He said Texas does not deport anybody.
“Texas takes them to the port of entry and the United States then decides what to do,” Nielson said. “That issue just isn’t going to come up if the United States says we’re not sending you to Mexico or some other place, because there’s pending proceedings.”
Richman asked Nielson if the U.S. decides whether the immigrants cross to Mexico or not.
“So I think [what is] critical about this is [that] this portrayed as Texas is, you know, ourselves, just like flying people off to some other place and that’s not accurate,” Nielson replied. “The Port of Entry provision, and especially the declarations that how Texas understands and intends to enforce SB 4, that’s not how it’s going to be. It’s going to be people are taken to the port of entry, and the United States controls the port of entry.”
Daniel Bentele Hahs Tenny, a Justice Department attorney, highlighted Nielson’s arguments during the hearing.
“The statute says that there will be an order that requires the non-citizen to return to the country from which the non-citizen entered the United States,” Tenny said. “They now say, I guess that you don’t actually have to do that, that maybe you just go to the port of entry, and that’s good enough.”
He then read what Texas initially intended to do.
“If Mexican authorities do not accept the entrance of an alien subject to an order to return, the escorting DPS officer will deliver him to the American side of a port of entry and observe the alien go to the Mexican side,” Tenny read. “Upon witnessing the aliens cross to the Mexican side of the international bridge, the officer will consider the aliens who have complied with the return order and will cease monitoring the alien.”
Judge Andrew Oldham said never in the history of the nation has the United States achieved what they have achieved in the SB 4 case.
“Which is a facial invalidation of a statute that never went into effect with no cause of action,” Oldham said. “… In order to preserve it, you have to show me that every single application of every single provision is unconstitutional in every single way.”
Mexico’s Ministry of Foreign Affairs issued a news release March 21 on behalf of the government of Mexico, stating its dissatisfaction with SB 4.
“Mexico will continue to use all legal and consular resources to provide timely, humane and dignified consular assistance and protection to all Mexican people in Texas,” the news release states.
The court ended the hourlong hearing without making a decision on the law.
