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.
“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.”
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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