McALLEN, Texas — An extraordinary bid by Texas to arrest migrants entering the United States illegally ran into judicial turbulence this week, with the state’s sweeping border enforcement powers briefly taking effect before being swiftly suspended once more by a federal appeals court.
The legal whiplash reflected the high stakes surrounding Republican Gov. Greg Abbott’s dramatic attempt to extend state policing authority into immigration matters typically reserved for the federal government. Tuesday saw a momentary victory for Mr. Abbott at the Supreme Court, only for his law to be frozen hours later by an appellate panel, leaving border communities grappling with its precarious status.
While the law’s future remains clouded, its very existence has inflamed tensions with Mexico and raised alarms about disruptions to the U.S. immigration system that could flow from empowering thousands of state police to make arrests typically handled by specialized federal agents.
The judicial back-and-forth began Tuesday morning, when the Supreme Court ruled 6-3 that Texas could begin enforcing the law as the legal battle over its constitutionality played out. That temporarily overrode a federal judge’s February injunction that had blocked the law from being implemented.
Hours after the Supreme Court’s order, Texas highway troopers and county sheriffs’ deputies were legally empowered to apprehend migrants suspected of circumventing federal inspection checkpoints and detain them on state trespassing charges, an authority far beyond their typical duties.
But by Tuesday night, a three-judge panel of the 5th U.S. Circuit Court of Appeals froze the law again, reinstating the injunction until the appeals court could hold arguments on the law on Wednesday. The panel offered no explanation for its order restoring the status quo, adding yet another twist in the dizzying legal saga.
Some border communities braced for disruption during the brief window when the law took effect, fearing car chases, racial profiling, and bottlenecks at ports of entry. But the trepidation proved premature with no arrests reported as the legal seesaw unfolded.
“It is unlikely that observers will see an overnight change,” said Brad Coe, the sheriff in Kinney County along the Rio Grande, though he endorsed his deputies gaining new latitude to take suspected border-crossers into custody if they had probable cause.
Mexico, which had warned it would not accept deportees processed under the Texas law, reacted angrily to the Supreme Court decision while it stood. Its foreign ministry asserted Mexico’s “legitimate right to protect the rights of its nationals in the United States and to determine its own policies regarding entry into its territory.”
That sparked concerns about retaliatory actions that could destabilize the critical cooperation between U.S. and Mexican authorities in managing migrant flows across the nearly 2,000-mile border.
The legal fight underscored the national shockwaves emanating from Texas as Republican-led states emboldened by hardline policies introduced over the past two years seek to extend their control over immigration enforcement, a federal prerogative.
Mr. Abbott has made cracking down on illegal immigration a top priority, deploying thousands of National Guard troops to police the border and installing a floating barrier of buoys to deter migrants from crossing the Rio Grande.
The law in question, passed last year by the Republican-controlled Texas legislature, allows state authorities to arrest migrants on trespassing charges and give them the choice of deportation or criminal prosecution.
Republicans praised the Supreme Court’s initial intervention. “The federal government has abdicated its responsibilities and states can and must act,” said Iowa state Rep. Steven Holt, whose legislature advanced its own anti-immigration bill this week.
In Arizona, Republican lawmakers have introduced measures modeled on the new Texas law. And in Florida, Gov. Ron DeSantis has embraced his own immigration crackdowns as he builds a possible presidential campaign.
But in Texas, the legal bout underscored how vigorously the Biden administration intends to fight any state laws encroaching on federal authority. The Justice Department has argued the Texas law unconstitutionally interferes with federal enforcement priorities and diplomatic relations.
The Supreme Court did not weigh the merits of those arguments, instead allowing the law to proceed while lower courts assess its legality. But the majority’s order signaled potential sympathy for Texas among conservative justices appointed by former Presidents Donald J. Trump and George W. Bush.
For now, the ultimate fate of a law Mr. Abbott had vowed to put into “historic” practice remains shrouded, with legal experts predicting further rulings by the appeals courts and Supreme Court ahead.
If eventually upheld, the law would effectively deputize state law enforcement across Texas to act as adjunct immigration agents at a scale never before seen in the United States, legal scholars said. Migrants found walking along remote ranch roads or highway shoulders could face detention and potential deportation by local authorities.
“It will be a mess, very clearly, to enforce,” predicted Daniel Morales, a law professor at the University of Houston. He questioned whether Texas had the “appetite and capacity” to devote the resources required to process and detain potentially large numbers of migrants across the state’s 254 counties.
Indeed, moments after the law took interim effect on Tuesday, ripples extended far beyond the Texas-Mexico border line.
In El Paso, along the northwest stretch of the boundary, the county’s top leader fretted about the specter of high-speed police chases and arbitrary traffic stops targeting migrants based solely on appearance, recalling previous surges.
“We had accidents, we had injuries. We got a glimpse of what would happen if the state begins to control what happens in respect to immigration,” said Ricardo Samaniego, the El Paso County judge. He said immigration enforcement should remain squarely in federal hands.
Still, immigration hardliners argued states have been forced to act decisively on their own amid record border crossings under President Biden. Federal authorities apprehended over 2.3 million migrants at the southwest border in fiscal year 2022, though numbers have fallen sharply in recent months after peaking in December.
Texas maintains it has experienced an “invasion” of migrants illegally entering from Mexico and endangering public safety, a notion rejected by the federal judge who initially blocked the law from taking effect.
Many legal scholars have challenged the “invasion” framing, though some conservative academics maintain states can deploy emergency defense powers, including arrest authority, in extraordinary immigration circumstances.
In the Rio Grande Valley, where migrant crossings have plummeted recently, local officials welcomed the judiciary’s intervention placing the law on ice, for now. They shuddered at the prospect of police aiming to detain border-crossers amid sensitive humanitarian work to process asylum seekers.
“It just complicates everything here and really gums things up,” said Sami Sarabia, the chief deputy constable in Hidalgo County. “I really question the impact we would see versus the commitment of resources it would require.”
For now, Texas officials must stand down from threatening to place migrants in newly built state prisons on trespassing charges. But the courts have not spoken their final word on testing the boundaries of federal supremacy during an era of unrelenting migrant arrivals.
