Short-term fate of Texas’ controversial immigration law could come down to a George W. Bush nominee

By Devan Cole, Tierney Sneed and Hannah Rabinowitz, CNN

(CNN) — A federal appeals court heard arguments Wednesday over whether to allow Texas to temporarily enforce its controversial law that allows state officials to arrest and detain people they suspect of entering the country illegally.

After an hour of oral arguments, it seemed clear that the main question was whether a key swing vote on the three-judge panel at the 5th US Circuit Court of Appeals could be persuaded to join her more conservative colleague in allowing some of the law to take effect – even if other parts remain blocked.

The debate over whether to “sever” part of SB 4 featured most prominently when Circuit Judge Andrew Oldham, a conservative appointee of former President Donald Trump, suggested to an attorney for the Biden administration that there are parts of the law that do not overlap with federal authority on immigration. Oldham hinted that he disagreed with a district court’s move to block the entire Texas law instead of just parts of it.

Fifth Circuit Chief Judge Priscilla Richman, who was appointed by former President George W. Bush, picked up on that point later with Texas Solicitor General Aaron Nielson. She suggested that even if a federal judge was wrong to block the entire law from going into effect, the appeals court might not have to permit the state to begin enforcing every provision of the law.

“Yes, your honor, if you if you think that the removal provisions are problematic, and that maybe even some applications of the arrest provisions are problematic, the court would have the power … to modify the injunction going forward,” Nielson said. “At a minimum, I respect your honor, you should do that.”

The hearing unfolded one day after the Supreme Court cleared the way for the measure to take effect, only for it then to be blocked by the 5th Circuit late Tuesday night. Wednesday’s arguments were over whether the intermediate court should block the law while it considers the larger legal challenge to it.

The third member of Wednesday’s panel – Circuit Judge Irma Carrillo Ramirez – did not speak during the hearing. Ramirez was appointed to the court last year by President Joe Biden.

The judges did not say when they will rule.

The law, SB 4, is part of the ongoing battle between Texas and the Biden administration over border policy and the flow of migrants into the United States. Immigration enforcement, generally, is a responsibility of the federal government, but the law signed by Republican Gov. Greg Abbott in December makes entering Texas illegally a state crime and allows state judges to order immigrants to be deported.

The law was initially challenged by the Biden administration, a pair of immigration advocacy groups and El Paso County, all of which have stressed throughout the litigation that the entry and removal of migrants has long been within the federal government’s bailiwick.

For its part, Texas has argued that SB 4 “comports with federal law” and claims that “states generally enjoy wide latitude to regulate alien misconduct and prosecute crimes involving illegal entry.”

Appeals court judge: ‘I’m not sure I understand the law totally’

In the first part of the hearing Wednesday, Richman pressed Nielson on how the state’s controversial immigration law would work, and the attorney has struggled with his answers.

Nielson admitted to the judge he is not entirely sure how Texas state courts would interpret the law, as he noted that a trial judge blocked it before it could be put into effect.

“I was just trying to envision how this would all play out. I’m not sure I understand the law totally,” the judge said.

Nielson repeatedly was unable to address scenarios she laid out as the judge tried to understand how the law would work. He repeatedly pointed to comments from federal officials, including from Biden, that there’s a “crisis” at the border.

“This is the first time, it seems to me, that a state has claimed that they have the right to remove illegal aliens. I mean, this is not a power that historically has been exercised by states, has it?” Richman said.

DOJ says immigration policy is an ‘international exercise’

A Justice Department lawyer said during Wednesday’s hearing that immigration policy is “fundamentally an international exercise” as he pressed to keep the law frozen.

DOJ attorney Daniel Tenny said implementing immigration policy involves collaboration with other countries. He was responding to a question from Richman, who asked him to address Texas’ assertions that the state law should be allowed to go into effect because the federal government is not doing a sufficient job carrying out US immigration laws.

Tenny said those claims were flawed both legally and factually.

Supreme Court let law take effect for several hours Tuesday

The Supreme Court did not explain its reasoning Tuesday when it voted to let the law take effect pending further action from the 5th Circuit.

However, a concurring opinion written by Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, explained that the appeals court had handed down only a temporary “administrative” order. Barrett appeared eager to keep the Supreme Court out of reviewing such orders.

Barrett and Kavanaugh, two critical votes on the high court, wrote that the justices should stay out of second-guessing appeals courts when it comes to very short-term “administrative” pauses that are generally used to give courts a few additional days to review the briefs.

“The time may come, in this case or another, when this court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it ac­cordingly,” she wrote. “But at this juncture in this case, that conclusion would be premature.”

Barrett wrote that if the 5th Circuit doesn’t issue a decision soon, the Biden administration and the other parties in the case could return to the Supreme Court.

The 5th Circuit scheduled Wednesday’s arguments shortly thereafter.

The three liberal justices dissented, saying the law should remain blocked.

Justice Sonia Sotomayor, whose dissent was joined by Justice Ketanji Brown Jackson, said the order “invites further chaos and crisis in immigration enforcement.”

The law, Sotomayor wrote in her dissent, “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.”

This story and headline have been updated with additional devlopments.

CNN’s John Fritze contributed to this report.

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