Fifth Circuit Denies Texas Motion, Keeps Immigration Law Block in Place
But the dissenting opinion is the must read.
Late Tuesday night, because of course, the Fifth Circuit Court of Appeals ruled 2-1 to keep the block on the Texas immigration law.
However, the dissenting opinion by Circuit Judge Andrew Oldham is the most important information.
Majority Opinion
“For nearly 150 years, the Supreme Court has held that the power to control immigration—the entry, admission, and removal of noncitizens is exclusively a federal power,” Richman wrote. “Despite this fundamental axiom, S. B. 4 creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal.”
Texas passed Senate Bill 4, allowing state law enforcement to arrest illegal aliens who cross the border outside of ports of entry.
“Here, the district court concluded that ‘the federal government has both a dominant interest and a pervasive regulatory framework’ to control immigration into the United States, ‘preclud[ing] state regulation in the area,'” wrote Chief Judge Priscilla Richman.
Richman also suggested that the executive branch has not done much because Congress has failed “to spend the funds necessary to address the massive increases in the number” of illegal aliens who have crossed the border.
Congress and the executive branch have not done much of anything concerning immigration in a loooooong time. Well, anything decent or positive.
Richman cited Arizona v. United States (2012), in which the state tried to use its immigration laws. The Obama administration sued the state.
SCOTUS explained “the necessity for the United States’ sovereignty in immigration matters and the breadth of the scheme of regulation Congress has adopted.”
However, the cases are different since Texas wants to stop illegal immigration and deport noncitizens.
Richman decided to use SCOTUS’s “guiding principles” in the case: “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”
Dissent
Circuit Judge Andrew Oldham dissented because he did not believe the plaintiffs showed that Texas law was unconstitutional.
For example, Oldham didn’t like using the Arizona case in the decision:
Alien registration is of course an exclusively federal prerogative. See Arizona v. United States, 567 U.S. 387, 400–03 (2012); Hines v. Davidowitz, 312 U.S. 52, 74 (1941). But S.B. 4 does not have anything to do with alien registration. And it is hard to see how every application of every provision of S.B. 4 interferes with some other purportedly “exclusive” aspect of the Federal Government’s power over immigration. One provision of the bill merely criminalizes something Congress already criminalized in the Immigration and Nationality Act (“INA”). Compare Tex. Penal Code § 51.02(a), with 8 U.S.C. § 1325(a). And that provision applies only to aliens whom Congress has deemed statutorily inadmissible. See 8 U.S.C. § 1182(a)(6). It is a mystery how the majority can hold that two materially identical provisions can “conflict” in every single one of their imaginable applications.
Oldham also pointed out that the decision “means that we’ll likely never know how Texas’s state courts and its state law enforcement officers would have implemented” the immigration law.
“The law has not gone into effect because a federal district judge entered a global injunction against it and against all of its hypothetical applications,” Oldham wrote.
Oldham knows the danger of this approach:
There is real peril in this approach. In our federal system, the State of Texas is supposed to retain at least some of its sovereignty. And its people are supposed to be able to use that sovereignty to elect representatives and send them to Austin to debate and enact laws that respond to the exigencies that Texans experience and that Texans want addressed. The people of Texas also elect state judges who are entrusted to interpret both state and federal law. And much (all?) of the federal system depends on the presumption of parity—that state courts are just as well-equipped and just as capable as their federal counterparts at interpreting and implementing federal law.
Oldham progressed to inform everyone how the state could mold and change the law to address the majority’s concerns.
If anything conflicted with the Supremacy Clause, the state could solve the issue “with a scalpel of as-applied relief in a future case as opposed to the machete of global invalidation in this one.”
Another great point: hypotheticals. The case is only based on hypotheticals because nothing has happened since the law has never been enacted.
I can hear my Intro to Law professor cringe at the thought of someone using hypotheticals in a case. It’s wrong:
“Under Article III, federal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). Yet when it comes to a facial, pre-enforcement challenge and a global injunction like the one issued by the district court, the federal judge ignores the plaintiffs in this case—none of whom are the subjects of S.B. 4 and none of whom could ever be injured by it directly. And the judge instead says, “I have channeled my Nostradamusonian power to see every potential future application of this State’s law to parties not before me, and I have imagined every conceivable argument that every conceivable hypothetical party could ever make for and against those imaginary applications of the State’s law to those imaginary facts, and I hereby hold all of them are unconstitutional.” Today’s majority opinion embraces that conception of the federal judicial power. Our federalism is poorer for it. See 17B Vikram David Amar, Wright & Miller’s Federal Practice and Procedure § 4251 (3d ed.; Apr. 2023 update) (“[T]he doctrine of ‘Our Federalism’ . . . “teaches that federal courts must refrain from hearing constitutional challenges to state action under certain circumstances in which federal action is regarded as an improper intrusion on the right of a [S]tate to enforce its laws in its own courts.”).
In other words, Oldham would allow the law to go into effect, wait for an actual conflict, and then confront it.
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Comments
The executive branch has done much
Secretly flown 320,000 in transport category aircraft
Welded the doors to the wall open
Reversed all Trump border policies
This judge lacks the personality characteristics required of public office holders
Why doesn’t congress have a bill ready for DJT on day one
-Enter the USA unlawfully-lifetime voting ban
-Vote contrary to the prohibition? 20-year mandatory minimum
-Poll worker entering prohibited persons ballot? 5-year mandatory minimum
I would mark them inglourious basterds style… But that’s just me… 🙂
The current Congress can’t have any bills ready for him. It will expire on Jan 3 and all unfinished business will expire with it. The next Congress can start that process, but it will require R majorities in both houses, and enough senators to override a filibuster.
And it will be at a time when the senate will be very busy in any case, trying to get Trump’s nominees through while the Dems obstruct as much as possible, as they did so successfully in 2017, so dealing with a filibuster at the same time would only add to the congestion.
Plus the 6th will be occupied with counting the electoral votes and the inevitable challenges and fuss around that. So I can’t see such a bill passing through both houses and being ready to sign, all between Jan-3 and Jan-20.
Also, your bill would not actually achieve anything. Illegal immigrants already have no path to citizenship currently open to them. Any such path would have to be passed by Congress, and if that ever happens the same act that lets them become citizens will undoubtedly also repeal the lifetime ban, so what’s the point, other than to signal virtue?
Remember that no congress can bind its successors. What one congress does another can undo.
Also, what do you mean by “Poll worker entering prohibited persons ballot”? If you mean issuing them a ballot, they would have to know that the person is prohibited. As a poll worker in NYC I can tell you that our only discretion is in comparing a voter’s signature to the one on file. If they’re on the roll, and the signature matches, and so do whatever identifying details that we ask them, then we have to issue them a ballot. I suppose if we were sure someone was registered illegally we could challenge them and kick it upstairs to the site coordinator or to the board of elections, but we’d have to be damned sure, and how could we be?
Unless Congress repeats all the laws Texas was enforcing the. This judgement is about as useful as a cock flavoured lollipop!
Just keep enforcing the laws and keep telling FJB to go fuck himself.
The invasion must go on. We Texans (I’ve been here three years) are not pleased.
But, to underscore what peril the Republic is in, Ted Cruz is only leading his opponent – who is essentially an open borders advocate who was recently caught laughing about Lakin Riley’s death – by 6-points, 51-45. This is essentially the same margin of victory that Trump enjoyed when he beat Biden in TX in 2020. Now, Cruz will likely easily win reelection, which will be an improvement for him over his 2018 reelection when he only won by 2-points. But, I’m worried that this insane, unprecedented border crisis is only have a modest impact in voters, at least at the moment.
Send a bunch of buses full to Wisconsin. I heard Joe is ahead there. Let’s give them what they will vote for, so they can see it before they vote for more.
Abbott must ignore it
It’s time
That’s easy to say until you remember what Merrick Garland has been doing to J6ers for 3+ years. If Abbott were to simply ignore the courts, he would surely be indicted. But even worse, any law enforcement officer who acted on Abbott’s orders would also be indicted. And, this is all additionally complicated by Mexico’s announcement that whatever happens to this law in the US courts, it will simply not allow these illegal border-crossers back across the border. Abbott would have to fly whomever he wanted to deport back to their home country. How’s that going to work when it’s the federal government that controls the airports?
The only thing that’s going to stop that is beating Biden this fall.
Abbot is simply enforcing the immigration laws passed by Congress. There is nothing to ignore.
He can’t do that. If not for the district court injunction he would enforce this state law; but with the injunction he can’t, or he’ll be in contempt.
No. TX is seeking to enforce its own Statutes passed by the TX.legislature.
Mexico is going to do what? Shoot them? Shoot American LEO sending them across? That might be outrageous enough to stop this whole mess of an invasion.
Another headline with quintuple negative legalese. It would be so nice for your readers if you could just yse verbiage on the order of “court rules pro Biden” or “pro Texas.”
Translation: “In a Win For Biden, Court Rules Border Must Remain Wide Open”
Cartels and human traffickers are smiling.
Because it isn’t “pro-Biden” or “pro-Texas”. These are not “0bama judges”, they’re not even the 9th circus; they’re honest judges deciding whether a district court’s injunction ought to be stayed pending Texas’s appeal. There’s a multi-factor test they are supposed to apply to decide whether to stay it, and they applied it and decided not to. They’d do exactly the same if it were a California law and Trump were president (and California were in the 5th circuit).
Doesn’t matter. They either come down with the judgment Biden wants or the judgement Texas wants. You can’t soft-shoe this.
A judge’s duty is to come down with the judgment the law demands, regardless of who wants it. A judge who does otherwise is the definition of an “0bama judge”, even if he’s on the right rather than the left.
“A judge’s duty is to come down with the judgment the law demands,”
Yes, and in case you haven’t noticed, they aren’t doing that.
Instead, far too many seem to be rubber-stamping the left’s destruction of the US, while their democrat hangers-on, like you squawk and justify them.
The federal government is ignoring their responsibility to maintain the border. The remedy for this is not in the Constitution. It’s in the Declaration.
While it’s most certainly the responsibility of the Federal government to determine immigration law, once established, a state has the ability to protect itself from unaddressed violations of that law according to constitutional law professor Rob Natleson. He has been posting a series on the issue at Epoch Times which is highly persuasive. I think it would stand a fair chance before Supreme Court, and the sooner the better.
Oldham’s dissent is fabulous. He pointed out that the case is based on hypotheticals. Nothing has happened because the law never went into effect.
He makes every reasonable case for Texas in detail that Natleson could only provide in general for lack of space and staff to assist. I dearly hope this case climbs the ladder of appellate steps to SCOTUS.
Hang on a second. The Constitution grants the Federal govt power over the Naturalization of non Citizens which while related to immigration is not the same thing at all. While it is true there’s 150ish years of (IMO) bad SCOTUS precedent, the lingering opinion of a long ago SCOTUS is not the same as enumerated Constitutional power. At any moment a majority of a current or future SCOTUS could upend that precedent which is much easier than passage of a Constitutional amendment.
True. But that would mean that the entire concept of “illegal immigrant” would disappear. There was no such thing at the time the constitution was ratified, or for nearly a century thereafter.
States could then continue to determine residency at minimum. Couple that with a Bruen inspired return to traditional vagrant laws and States simply deport them. Bit of a reach but certainly possible.
Better would be for common sense to prevail and SCOTUS (and everyone else) to recognize that just as States have the power to set and enforce laws on Bank robbery despite Federal statues that they have a similar power to set and enforce statutes re entering/remaining within the borders of the State so long as those are not in conflict with Federal statues. Where the Federal govt declines to enforce Federal statues the State should be free to enforce their State statute.
At the heart of the dispute is what is an “invasion” according to the Constitution, and if and how a state may respond to it if at all. Natleson argues quite reasonably that the term of art as used in the Constitution is far broader than that which the prevailing judges have employed in their opinion. Space here is at a premium, so google Natleson and Texas in Epoch Times for a start. Naturalization and immigration are indeed separate issues but conjoined in certain respects.
That isn’t the dispute here before the CT that was ruled upon. Do I believe it is an invasion? Yeah I do. The question is how to respond EFFECTIVELY, not just respond to appease the masses. It does no good to go off half cocked with a claim(s) that can be easily disproved or if outside the CT in way that can be out maneuvered by the Biden Admin.
IMO, TX is smartly playing the the long game here by slowly using everything they can to protect their State Border with Mexico. With each step they demonstrate that Biden and the Fed Govt is not only refusing to perform their duty to secure the Border but also attempting to inhibit TX from acting in their absence.
It’s frustrating for sure but by moving incrementally TX is building the underlying base of facts and evidence to support them when they either prevail at SCOTUS or as a last resort decide they must reject the CT and Admin opinions and to act unilaterally to protect the Citizens of TX.
I am ignorant in general and in constitutional law in particular. Thus, I have a question:
What happens if the State Of Texas defies the court and starts deporting illegals? What options does the Federal administration have? What kind of sanctions could they apply and actually enforce? Could they use the National Guard to physically stop Texas’ agents from acting?
The Posse Comitatus Act is a United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) signed on June 18, 1878, by President Rutherford B. Hayes limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States….
Does that include the use of the National Guard?
That’s an excellent question. I wonder if the court would fine the state.
It depends. National Guard troops are only proscribed by posse comitatus if they’ve been activated under the authority granted to the President under Title 10. Obviously, when activated under Title 10 – as they are when deployed overseas, for example – they are no longer part of the civil government of Texas and instead, become federal employees as active-duty uniformed service members, with a chain-of-command stipulated by the Goldwater Nichols Act.
If National Guard troops are ‘activated’ by the authority of the governor – as Abbott has done with the Guard troops currently at the border – those Guard troops are Texas state civil servants. They’re not subject to the UCMJ and instead, would be governed by Texas state laws. This is why governors can call up National Guard troops and direct those Guard troops to engage in civilian law enforcement activities, as occasionally happens during natural disasters…or border invasions.
Depends on what status the Guard is called up under. If it’s State Service or Title 32 Service, they can, in fact enforce the law. Title 10 is where decisions has to be made–that is, when the Guard is called up and federalized. They already know the answer to those questions. This is all sophistry and BS since the current regime *wants* the border to be wide open.
Here’s two possibilities. The Federal Court directs the US Marshall to make arrests of those individuals who act in violation of its order. The POTUS calls those NG troops into Federal Service thus bypassing the Gov and orders them to stand down to a staging area somewhere away from the border area.
If TX defies the district court’s injunction and starts enforcing this law, the first thing the judge does is issue habeas writs for each illegal who has been arrested. You do not defy a habeas writ. The second thing the judge does is find out who arrested these people, and who ordered them to, and who ordered them to, and holds them all in contempt, right up to Paxton, if not Abbott. If necessary he sends US marshals to arrest them all.
What Texas can do now that the 5th circuit has actually considered and denied a stay pending appeal, is to appeal that denial back to the Surpreme Court. We know three judges will reject that appeal, but we really have no clue what the other six will do. Barrett and Kavanaugh expressly said that the reason for their decision last week was simply that they don’t want to mess with circuit courts’ administrative stays. Since that is no longer an issue, that reason no longer applies.
it looks like
@CadburyUK
is heading towards a boycott as Easter Eggs have been renamed Gesture Eggs.
What does that even mean
No freedom of speech in britain. Messaging must remain cryptic?
An ‘outlet’ shop for Cadbury set up a PR/Ad display of Cadbury ‘Easter Eggs’ as ‘Gesture Eggs’. The PC Woke insanity in Britain is what we have in CA x eleventy.
Apparantly, the Guantee Clause of the US Constitution charging the federal govt. with ‘shall protect each of them (states) against invasion’ is worth about as much as a scotus opinion prohibiting JoeBama from discharging $$billions$$ in student loan debt, and JoeBama ignoring that opinion.
JoeBama has fed funds to transport millions of illegals into the interior, but not enough funds to secure border ’cause congress bad? Absurd, insulting argument.
Speaking of scotus, they vacated the 5th’s stay of Texas law, then sent it back to the 5th, and the 5th promptly reversed the highest court by re-applying the stay of Texas law.
What kind of kangaroo court BS is this??
States are sovereign entities with duly elected government charged with defending its citizens and self-interests. JoeBama set the precedent of ignoring court opnion; Texas should follow and ignore the 5th’s opinion. Force JoeBama’s hand.
The majority opinion – written by Judge Prescilla Richman, a Bush appointee..which underscores what an idiot W really was – dismisses Texas’ assertion of the ‘State War Clause’ (the clause you’re referring to) gives Texas the authority to eject foreign invaders:
While she recites the activities of the State War Clause that are specifically allowed when a state is invaded, she slyly leaves out the most important activity specifically allowed by the State War Clause: ENGAGE IN WAR. It’s tough to argue that the very Clause that would allow Texas to engage in war during an invasion would not allow Texas to return the invaders from whence they came. So, she simply ignores it.
Maybe five Supreme Court justices won’t.
All you’ve done is demonstrated your ignorance of the topic.
1. Article 4 § 4 is not justiciable. It is entirely up to the political branches to enforce or not to, as they choose. (Luther v Borden, 1849)
2. Joebama has not ignored any court opinion.
3. The 5th circuit did not “promptly reverse the highest court” at all. Not even a little bit. It has done exactly what SCOTUS expected it to do. Now if Texas is feeling lucky it can appeal to SCOTUS. There’s no telling what the result would be.
4. This is not “kangaroo court BS”, it is exactly how the courts are supposed to work.
5. States are sovereign entities, but federal law is the supreme law of the land, and they are bound to obey it.
6. Joebama has not ignored any court opinions, and if Abbott tries doing so he’ll find himself in custody for contempt of court.
Right on cue, Milhouse with his ‘fog of war’ analysis.
They’re called facts. You’re not entitled to your own.
We are at war, and have been for a long time. Those are your opinions within your ‘fog of war’ analysis. You feel this stuff still matters to a federal govt. hostile to its own people. It doesn’t. JoeBama demostrates that fact almost daily with impunity.
Some 1849 court opinion underpins JoeBama allowing 3rd world invaders into our nation so they can rape, murder, steal, and the states just have to sit there and tolerate it while they pray to gods of stari decisis, and favorable appeals???
Yuk, yuk, yuk. Yes indeedy says Milhouse.
Know this, when the revolution comes to your doorstep there will be no one to save you.
LB, these are not my opinions, they are cold hard facts. They are the truth, and what you have written is falsehood.
A4 §4 is not justiciable. That is established law. So you can’t appeal to it.
Field preemption is also established law. When congress enacts a national scheme that is intended to occupy an entire field then states are not allowed to legislate at all in that field. That includes bank robbery; if Congress were ever to enact a comprehensive national law on it, then all state laws on bank robbery would automatically become invalid.
And your claim that joebama has ignored court orders is simply a lie. So is your claim that the 5th circuit reversed SCOTUS. It didn’t, and you are not entitled to claim that it did.
It’s not ‘fog of war’–it’s Milhouse, the Democrat, doing what his leftist masters tell him to do.
He is here to demoralize us, to show us, ‘from OUR side’ how we are wrong and thereby undermine any confidence we have in the right and in right wing thought as a whole.
He’ll come along after I write this to screech ‘liar’.
He’s a joyless lil pet, but he’s our joyless lil pet.
In fairness here Milhouse is providing Constitutional text, federal statutes and some of the relevant Case law precedent that shape the issue(s) surrounding ‘immigration’. Then he offers his opinion on how those interact with the particular topic at hand.
This is a website that focuses on the legal process surrounding the issues of the day. That’s what makes it different than other sites where folks on all sides/perspectives of a particular issue just rant their views without any grounding in whether their ideas are Constitutional or possible from a legal perspective.
Azathoth, you are a liar. It’s a plain fact. And you’re not on “our” side. Your devotion to lies, your rejection of any concept of objective truth or right and wrong, make you a leftist.
“In fairness here Milhouse is providing Constitutional text, federal statutes and some of the relevant Case law precedent that shape the issue(s) surrounding ‘immigration’. Then he offers his opinion on how those interact with the particular topic at hand.”
With a lens that always tips leftward.
That’s the point. Milhouse legal interpretation always seems to leave the left holding all the cards. Even when he’s ‘defending’ a point or person on the right.
And right on cue-
“He’ll come along after I write this to screech ‘liar’.”
And, ladies and gentlemen, here he is, you know him, let’s give a great big LI, ‘oh won’t you please shut the hell up’ to our very own, our fantabulous, MILHOUSE!!!
“Milhouse in reply to Azathoth. | March 28, 2024 at 10:28 am
Azathoth, you are a liar.”
You’re new here. No one is following you in any LI anything. And you are indeed lying about Milhouse, who has been here for ages and will remain long after you are gone.
This IS a lie.
Judge Richman says the Executive Branch has not done much because congress has failed to spend the funds necessary…I’m tempted to say she can’t be that stupid or that much of a liar or so completely uninformed. So to her the border situation is a function of not enough money being spent? Her view isn’t even silly. It’s not even grade school. It seems that the judiciary, when it isn’t being out and out corrupt, is too dumb for words.
She can be and is that stupid.
Does it now go back to the USSC?
Since this was a 3-judge panel, I believe Texas has the option of applying for an en banc review, which they might select if they believe that ruling would be more favorable than the 3-judge panel was. If not, then yes, they’ll file certiorari with SCOTUS.
Well, it’s not a waste of time to go for the en banc hearing simply because it would be faster relief if it goes their way and it doesn’t hurt anything if it doesn’t. It can months even if Supreme Court grants cert for it to actually be heard
That’s true. But, even if there’s no appetite for the 5th Circuit (en banc) to find favorably for Texas, SCOTUS could issue immediately set aside the injunctive relief granted to the feds by the District Court, if they’re so inclined, That way, no matter how long SCOTUS took to decide the case on the merits, Texas could enforce the law as written, now.
It can, if Texas is feeling lucky.
Last week USSC said “we don’t mess with administrative stays. Come back when the 5th circuit has either granted or denied a real (not administrative) stay of the district court injunction. Or, if it doesn’t get off its behind and do one or the other PDQ, come back anyway and we might change our mind about not messing with them”. Well, the 5th took that seriously and has acted. It denied the stay. Now USSC has something it can review, if it chooses to.
Cities and states must stop enforcing all federal laws I guess
Only the ones the Biden Regime tells them to.
It can’t tell them to, it can only ask. Hence “sanctuary states” that exercise their tenth amendment right to refuse a federal request for assistance in enforcing a federal law.
Does anyone else notice how Milhouse thinks it’s Constitutional to refuse a federal dictate when one wants to empower sanctuary cities, but contempt to refuse to obey a federal dictate to not enforce the border?
Weird, no?
And here comes the lying devil again. Go back to Hell, you do not belong here.
What Federal laws are cities and States currently enforcing where you live? Legit question.
Cities and states don’t enforce federal laws, unless (1) the feds ask them to, and (2) they want to. Both conditions are necessary. That’s been the law for as long as there’s been a USA.
Who didn’t think the Marxists would stop Texas eventually raise your hand?
There are no Marxists on the 5th circuit.
wonder as to reactions if these ” immigrants ” were armed ?–but they’re too smart for that–they know that if they can make it here the checkbook is open, the freebies are guaranteed and all they’ll have to do in return is vote for a particular party/candidate–it’s dirt simple
when ” judicial relief ” is denied ( after all the correct, thoughtful, civilized reliefs have been turned away ) there remain for the people only extra-judicial remedies–as has been fjb and his handlers’ intentions from the outset–so be it