Today, Texas Governor Greg Abbott signed into law S.B. 4. This law makes it a state offense to illegally cross the border. Before you shout that this law clearly violates Arizona v. United States (2012), re-read this passage from Justice Kennedy’s majority opinion:
Arizona left open the question of whether Texas can detain aliens who violated federal immigration law. I made this point in the New York Times in October:
I am skeptical that Arizona v. United States, a 5-4 decision, would come out the same way today. But there is no need to revisit the decision, as Justice Kennedy expressly left the issue unresolved. I still think there may be some wrinkles with the state law with regard to processing asylum claims, but that will come out in litigation. Speaking of which.
I expect the United States to file suit any minute in the Western District of Texas, Austin Division, where it will likely be assigned to Judge Roger Pitman, who tends to get all of the federal government’s suits against Texas that are filed in Austin. The ACLU will also find a favorable division somewhere in the Valley. Conservatives are not the only ones who know how to forum-shop. All of which is to say that in the near future, the Fifth Circuit will be likely asked to stay a district court injunction. And at that point, the case will come to the Supreme Court’s emergency docket. And we know how the Fifth Circuit tends to fare on the emergency docket.
Arizona left open the question of whether Texas can detain aliens who violated federal immigration law. I made this point in the New York Times in October:
I am skeptical that Arizona v. United States, a 5-4 decision, would come out the same way today. But there is no need to revisit the decision, as Justice Kennedy expressly left the issue unresolved. I still think there may be some wrinkles with the state law with regard to processing asylum claims, but that will come out in litigation. Speaking of which.
I expect the United States to file suit any minute in the Western District of Texas, Austin Division, where it will likely be assigned to Judge Roger Pitman, who tends to get all of the federal government’s suits against Texas that are filed in Austin. The ACLU will also find a favorable division somewhere in the Valley. Conservatives are not the only ones who know how to forum-shop. All of which is to say that in the near future, the Fifth Circuit will be likely asked to stay a district court injunction. And at that point, the case will come to the Supreme Court’s emergency docket. And we know how the Fifth Circuit tends to fare on the emergency docket.