SCOTUS Unblocks SB4, Allows Texas Police to Arrest Suspected Illegal Border Crossers–Update: Appeals Court Issues New Hold

In a surprise ruling Tuesday, the Supreme Court lifted its stay on the enforcement of Senate Bill 4, the controversial Texas immigration law that allows Texas officials to arrest, prosecute and deport suspected illegal immigrants.

The 6-3 decision came a day after the court allowed a stay on enforcement of SB4 to lapse and then quickly reinstated it at the behest of the Biden Regime. [Update: the 5th U.S. Circuit Court of Appeals has since placed another hold on SB4.]. 

SB4 makes it a state crime to cross the Texas-Mexico border between ports of entry. The offense is a Class B misdemeanor carrying a punishment of up to six months in jail. Repeat offenders would potentially face a second-degree felony and  a punishment of two to 20 years in prison.

The law, which was to take effect this month, gives Texas judges the authority to order illegal immigrants to leave the country.

The Biden Justice Department had argued that SB4, signed into law by Gov. Greg Abbott in December, would usurp federal authority on matters related to immigration enforcement.

“The United States brings this action to preserve its exclusive authority under federal law to regulate the entry and removal of noncitizens,” the DOJ lawsuit filed in January stated. “Texas cannot run its own immigration system. Its efforts, through SB 4, intrude on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate the United States’ immigration operations and proceedings, and interfere with U.S. foreign relations.”

The high court’s decision Tuesday allows Texas to run its own border operation with arrest and detention capacity while the U.S. Court of Appeals for the 5th Circuit considers its legality.

Governor Abbott heralded the development on X, saying the ruling will allow Texas officials to begin enforcing the law.

“We still have to have hearings in the 5th circuit federal court of appeals,” Abbott wrote. “But this is clearly a positive development.”

The governor has argued that the state’s law mirrors federal law and was needed to “stop the tidal wave of illegal entry into Texas.”

Texas Attorney General Ken Paxton also celebrated the decision Tuesday, telling Fox News: “Texas has defeated the Biden Administration’s and ACLU’s emergency motions at the Supreme Court. Our immigration law, SB 4, is now in effect. As always, it’s my honor to defend Texas and its sovereignty, and to lead us to victory in court,”

The ruling was not focused on the merits of the case itself, but on the stay on the law issued by the Fifth Circuit Court of Appeals, which had blocked the law in February from taking effect. The court did not explain its reasoning for ending the stay but in a concurring opinion, Justices Amy Coney Barrett and Brett Kavanaugh expressed concern about the moves by the appeals court – and suggested it could rule differently on the merits itself.

“Before this Court intervenes on the emergency docket, the Fifth Circuit should be the first mover,” Barrett wrote.

“So far as I know, this Court has never reviewed the decision of a court of appeals to enter — or not enter — an administrative stay. I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal,” she added.

Justices Sonia Sotomayor and Ketanji Brown Jackson issued a scathing dissent accusing their conservative counterparts of inviting “further chaos and crisis in immigration enforcement.”

“Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings. That law upends the federal state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens,” Sotomayor said.

According to Hot Air’s Ed Morrissey, the ruling “strongly suggests that the Supreme Court will look favorably on the matter.”

Courts do not issue injunctions unless the party is likely to prevail at trial and substantial harms will occur without an injunction. Given that Texas seems to have convinced both courts of the necessity of the injunction against the lower court ruling and now have permission to enforce this law, it seems the two courts see Texas as the likely victor in this legal battle.

The legal battle over SB4 is just the latest clash between Texas and the Biden regime on how to handle the ongoing crisis at the border.

Texas Republicans have repeatedly butt heads with the regime over its refusal to secure the 1,950-mile southern border.
The state has experimented with a range of measures to deter people who cross illegally under its Operation Lone Star, including deploying National Guard troops to the border, blocking migrants with concertina wire and installing a floating barrier over a stretch of the Rio Grande.

The DOJ sued the state last year over the floating barriers on the Rio Grande.

A three-judge panel of 5th U.S. Circuit Court of Appeals ruled in December that Texas must remove the floating barrier although Texas is seeking a review by the full court.

The DOJ has also requested that the Supreme Court intervene in its dispute with Texas over the razor wire. Texas sued the DOJ after federal officials were caught cutting and destroying the wire to help illegals cross into the United States. The Supreme Court in January ruled that the feds could remove the wire barriers while the legal challenge continues.

In January, the Texas National Guard seized control of a park in Eagle Pass where masses of illegal immigrants come through, and refused to allow federal officials access. The Biden administration subsequently filed a supplemental memorandum to the Supreme Court to complain about the Texas National Guard’s activities.


Hours after the Supreme Court’s decision, the 5th U.S. Circuit Court of Appeals placed another hold on SB4, Fox News reported. Their 2-1 order prevents the law from taking effect.

The appeals court will hear arguments on the case Wednesday.

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About Debra Heine

Debra Heine is a conservative Catholic mom of six and longtime political pundit. She has written for several conservative news websites over the years, including Breitbart and PJ Media.

Photo: EAGLE PASS, TEXAS - MARCH 12: National Guard soldiers patrol at the entrance to Shelby Park on March 12, 2024 in Eagle Pass, Texas. U.S. President Joe Biden's budget proposal includes a $4.7 billion emergency fund to enhance border operations in preparation for potential illegal migrant surges along the Southern border. (Photo by Brandon Bell/Getty Images)

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