Court Responses to Texas Migrant Arrest Statute

Texas Skyline with the American Flag and the Texas Flag flying on a flag-pole at the Texas border.

Court Responses to Texas Migrant Arrest Statute

Immigration has customarily been a federal matter, where the nature of the regulation has been so comprehensive that the federal government can fairly be said to have occupied the space.
Richard P. Swanson, Esq.
Written by: By Richard Swanson, NYCLA President-Elect
Published On: Mar 21, 2024
Category: News & Insights


The recent back-and-forth between the Fifth Circuit and the Supreme Court about the Texas migrant arrest statute does no credit to our senior federal judiciary. It’s not designed to instill public confidence in the judiciary to have courts going back and forth in such a confusing, rapid-fire, inconsistent way on stay applications on such a serious matter as whether a state has a right to arrest illegal immigrants.

A little background. Texas recently passed a statute authorizing the state to address the perceived crisis at the border by arresting illegal migrants and then detaining and deporting them. That power has historically been exercised exclusively by the federal government, so not surprisingly litigation ensued. The District Court found the statute to be an unconstitutional impingement on federal authority, and it enjoined Texas’s execution of this newly enacted purported state power. An appeal to the Fifth Circuit ensued. We know the Fifth Circuit to be the most conservative, Court of Appeals in the country. That Court entered, almost immediately, an “administrative stay,” allowing Texas to enforce its statute and arrest migrants while the appeal ensued. The “administrative stay” remained in place while the appeal was “slow-boated” by the Fifth Circuit.

As a result, the plaintiffs went to the Supreme Court to ask that Court, as part of its “shadow docket,” to lift the stay. On Tuesday, March 19, the Supreme Court entered an order which continued the Fifth Circuit’s stay, and remanded the case back to the Fifth Circuit with an instruction that that Court act quickly, and stating that if they did not the plaintiffs could come back to the Supreme Court to seek renewed interim relief.

Before the night was out, the Fifth Circuit had acted again, this time to vacate its “administrative stay,” which had the effect of reinstating the District Court’s injunction prohibiting Texas from enforcing its statute and arresting immigrants while the state’s appeal ensues. The Fifth Circuit could have entertained litigation about the appropriateness of continuing its stay, but instead it simply vacated it.

The Fifth Circuit did hold a hearing the very next day on whether to reimpose the stay. At the moment this is being posted, we are awaiting a decision on that motion.

Wow. Law is supposed to be at least somewhat predictable, to guide human behavior. How are we supposed to respect the judicial system and its ability to provide such guidance, when the District Court makes a ruling, its ruling is stayed by an intermediate appeals court, the Supreme Court says you can continue the stay, but act fast, and the response of the intermediate appeals court, in less than 12 hours, is, to quote Gilda Radner, “never mind, we’ll vacate the stay and allow the District Court’s judgment to be enforced, at least for the moment.” Rapid fire, head spinning, seemingly random, at the very least surprising and completely unpredictable.

And to compound matters, this is in the context of a case where Texas is directly challenging the federal government on an extremely hot, and deeply politicized, topic in a Presidential election year. As a result it is hard not to view the stay applications, and the invocation of the Supreme Court’s “shadow docket,” through anything other than party politics. That is especially true given how the current conservative majorities on the Supreme Court and the Fifth Circuit both came to be. Not a good look. None of it is designed to generate public respect for the judiciary, on either side.

Most of the blame in this current episode has to be placed at the Fifth Circuit, which created the problem in the first place, and then reacted as rapidly as it did to the Supreme Court’s order. As far as I am concerned the episode ended in the right place, at least for the moment. Texas is being forced to comply with the one definitive court ruling that exists on the merits, namely the District Court’s decision that the Texas statute is unconstitutional. But boy oh boy, the episode isn’t exactly confidence-inspiring.

On the ultimate merits, my own view is that the District Court was plainly right. Immigration has customarily been a federal matter, where the nature of the regulation has been so comprehensive that the federal government can fairly be said to have occupied the space. Uniformity in administration across the entire country is also important, and immigration policy clearly influences foreign policy which has also long been a federal rather than a state area of responsibility.

Consider also the practical implications. We have an asylum system that guarantees the right of asylum applicants to a hearing of their claims before they can be deported. Texas, however, is trying to assert the right to arrest and deport before any of that can occur. One can quarrel with the sensibility of our asylum policy, which has unquestionably generated many fraudulent asylum claims, but isn’t Texas’s statute resulting in a clear conflict with federal law of the kind that is plainly prohibited by the Supremacy Clause? And doesn’t Texas’s statute implicate human rights and foreign policy concerns? Isn’t the right place to challenge the sensibility of our current asylum laws the halls of Congress rather than via state-level arrest and detention?

One can also certainly quarrel with the current state of affairs at the border, but we haven’t passed meaningful immigration legislation since the 1980s, and recent attempts to do so were thwarted. Notwithstanding the politics of the situation, Congress is the place to fix immigration, not a Texas state jail cell.

But whatever your views on the ultimate merits may be, I would hope we could all agree that the right way to address these issues judicially-speaking shouldn’t be a series of confusing and rapid-fire stay applications. Not a good look.



                                                                                     Richard P. Swanson

                                                                                     President-Elect, NYCLA



The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers, or its Board.