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Within hours of appeal, Supreme Court stays appellate ruling on Texas border bill

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Within hours of a federal appeals court decision Monday allowing a new Texas law to stand that makes illegal entry into the state from a foreign nation a state crime, U.S. Supreme Court Justice Samuel Alito stayed the appellate court’s decision.

The order from Alito, who oversees the Fifth Circuit Court of Appeals, states “that the March 2, 2024 order of the United States Court of Appeals for the Fifth Circuit … is hereby administratively stayed until 5 p.m. (EDT) on Wednesday, March 13, 2024. It is further ordered that a response to the application be filed on or before Monday, March 11, 2024, by 5 p.m. (EDT).”

Alito’s ruling prevents the law from going into effect on March 5, as originally intended, or on March 11, as the Fifth Circuit ruled unless the Supreme Court intervened.

The Supreme Court intervened in record speed in a case expected to ultimately be ruled on by the country’s highest court.

Earlier Monday, the federal appeals court overturned a lower court ruling halting enforcement of the law.

Before the Supreme Court halted the appellate court decision, Texas Gov. Greg Abbott said it allowed the Texas law to go into effect, which is no longer the case.

“Law enforcement officers in Texas are now authorized to arrest and jail any illegal immigrants crossing the border,” Abbott said, “unless the Supreme Court intervenes by March 9,” which it did.

The conflicting rulings come two months to the day of the Biden administration suing over a bill the legislature passed last year, which Abbott signed into law in December.

The lawsuit was filed in the U.S. District Court for the Western Division of Texas Austin Division and names Abbott, the Texas Department of Public Safety and its director, Steven McCraw, as defendants.

On Thursday, the U.S. district judge ruled in favor of the Biden administration and issued a preliminary injunction blocking the bill from going into effect. The state quickly appealed to the U.S. Court of Appeals for the Fifth Circuit. On Monday, three appellate justices delivered an opinion for the entire court granting a temporary administrative stay to the district court’s ruling for seven days pending the appeal to the Supreme Court.

The Biden administration argues SB 4 “creates purported state immigration crimes for unlawful entry and unlawful reentry, permits state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders.”

It also argued, “Texas cannot run its own immigration system,” via SB 4, which “intrude[s] on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate[s] the United States’ immigration operations and proceedings, and interfere[s] with U.S. foreign relations.”

Abbott has remained steadfast that Texas has the right to self-defense. S.B. 4’s goal is to “stop the tidal wave of illegal entry into Texas,” Abbott said. It stipulates that repeat offenders who illegally reenter Texas can face a prison sentence of up to 20 years. It also gives law enforcement the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry.

After the district court ruling, Abbott said, “we will not back down in our fight to protect our state – and our nation – from President Biden’s border crisis. The President of the United States has a constitutional duty to enforce federal laws protecting States, including laws already on the books that mandate the detention of illegal immigrants. Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border. Even from the bench, this District Judge acknowledged that this case will ultimately be decided by the U.S. Supreme Court.”

The Supreme Court had already intervened in one federal lawsuit over Texas’ concertina wire barriers, authorizing Border Patrol agents to destroy them as the case makes its way through the court system. Since then, Abbott has expanded fortifications, built a military base at the border, and received support from the Texas legislature and 25 Republican governors. Border Patrol agents also haven’t destroyed any Texas barriers.

In a recently published column, Abbott repeated an argument first made by former Arizona Attorney General Mark Brnovich in a legal opinion he issued on “invasion,” supporting state’s rights to self-defense. Brnovich pointed to James Madison who “cited Virginia using its militia to stop smugglers as an example of a valid exercise of the invasion power, and there is every basis to conclude this sovereign power was retained as reflected in the State Self-Defense Clause.”

Abbott argued, “Today, Texas faces a similar but starker threat than Virginia’s smugglers, with Mexican drug cartels that operate as paramilitary forces on our border.”

Abbott also cites Article 1, Section 10, Clause 3 of the U.S. Constitution justifying Texas’ right to self-defense. Kinney, Terrell and Goliad counties first cited the clause in invasion declarations they passed on July 5, 2022. Since then, 53 counties have done so. Abbott’s reference to cartels as “paramilitary forces” was first used in Crockett and Shackelford counties’ invasion resolutions.

Abbott and 25 Republican governors argue the U.S. Constitution “is the supreme law of the land and would supersede any federal statutes to the contrary.” They will also “do the job that President Joe Biden has failed to do,” he said: continue to build barriers to deny illegal entry, arrest illegal foreign nationals, and “defend our state, and this nation, from grievous threats to our border.”

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