Texas argues before appeals court that state has 'right to defend itself' after Supreme Court issues ruling on border laws

In a special hearing held on Wednesday morning, the Fifth Circuit Court of Appeals heard arguments in regard to allowing Texas’ SB 4
to go forward. The law would make it a crime in the state to cross the border illegally, empowering local police to arrest those caught doing so. The state wants the bill to take effect while awaiting the full hearing on the matter.

At the center of the hearing for both sides of the case was a similar Arizona law partially struck down by the Supreme Court in 2012, Senate Bill 1070. That bill, among other things, made it a misdemeanor offense to be in the state without any documents stating that they had registered to be there.

Aaron Nielson, representing Texas, told the panel of judges that Texas’ SB4 "is a modest but important statute. It’s modest because it mirrors federal law. It’s important because it helps address what even the president has called a border crisis."

Noting the district court blocking the bill days before it was set to take effect, the attorney stated that "the district court misread Arizona to conclude that everything is field preempted, but that’s not what Arizona says."

Nielson stated that Texas "has a right to defend itself," and noted that "the district court acknowledged that sometimes those associated with the cartels cross over the border with malicious intent. That’s sufficient to say that some applications of the statute are constitutionally preempted."

The attorney pointed the court toward Biden’s State of the Union address as well as FBI Director Christopher Wray’s testimony for examples of why the situation at the border requires state action.

"There’s a real crisis going on here. Texas has decided that we are at the epicenter of this crisis. We are on the front line, and we are going to do something about it."

"And we have tried to do it the very best we can to fall within the scope of the Supreme Court’s decision in Arizona."

"So in Arizona, there were provisions that did not match with what federal law says. Here we've tried to mirror federal law. And it's hard to see how a state law that mirrors federal law about a core state police power can nonetheless be preempted in all applications facially."

One of the judges questioned his statement of "core police power," adding that "this is the first time it seems to me that a state has claimed that they had the right to remove illegal aliens. I mean, this is not something that just that — a power that historically has been exercised by states, has it?"

The attorney said it depended on what was meant by "removal," noting that "I think that it’s certainly true that a state doesn’t generally have the power to, you know, admit or exclude."

The law, he said, has law enforcement obtain an order from a judge, and the illegal immigrant is taken to a legal port of entry.

The attorney also explained that those who get released back into Texas with "some sort of lawful status" will remain in the state.

Arguing for the United States against Texas, attorney Daniel Tenny noted the Arizona Supreme Court case, saying that the high court "considered a state enactment that purported to create a state crime that paralleled or at least purported to parallel a federal criminal provision in the immigration area and in that case, it was noncitizen registration."

"And so here, Texas is saying that a state can't have a parallel crime for noncitizen registration, for the even more core aspects of immigrant federal immigration law, the entry of noncitizens into the United States and the removal of noncitizens from the United States, a state is nonetheless authorized to have a unilateral system without any coordination with the federal government on the face of the statute without regard to whether the federal government deems it appropriate to penalize these noncitizens in this way without regard to the procedures that would accompany federal removal, which could be either a substitute for or complementary to criminal prosecution in the case of non citizens."

Tenny later added, "All the district court did was preserve the federal list system that’s been in effect for 150 years based on repeated invocations of the Supreme Court.

A judge chimed in and said that the attorney representing Texas is arguing that "the executive branch is not enforcing the law and has not for years, decades, at least a decade, and therefore they are no longer occupying the field. What's your response to that?"

He responded that Congress has "robustly occupied this field," adding that it’s wrong to say that "the federal government isn’t acting in this area," noting that the district court had cited "numerous statistics about the federal government’s active engagement in this area."

Another judge pushed back on the relief sought by the US government, stating, "the thing I’m hung up on is that for you to win, you have to get relief against every provision of SB 4, right, including the unlawful ports of entry and arrest provisions."

Tenny responded that "we submit, of course, that all the provisions are invalid," to which the judge said that in order to do that, "which we don’t normally do," the court would have to reform the district court’s injunction on the law.