By Daniel Wiessner
(Reuters) -A U.S. appeals court panel on Wednesday seemed divided over whether to continue blocking a Republican-backed Texas law that would empower state authorities to arrest and prosecute migrants and asylum seekers suspected of illegally crossing the U.S.-Mexico border.
A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals is considering whether to allow the law known as S.B. 4 to take effect while the state appeals a judge's ruling that prevented it from being enforced pending the outcome of a challenge by the administration of Democratic President Joe Biden and civil rights groups.
S.B. 4 would make it a state crime to illegally enter or re-enter Texas from a foreign country and would allow state judges to order that violators leave the United States, with prison sentences up to 20 years for those who refuse to comply. Critics of the measure point out that migrants who cross the border can already be charged with illegal entry or re-entry under federal laws and immigrant advocates say a state law could fuel racial profiling.
The two judges who spoke during Wednesday's hour-long arguments split sharply over whether S.B. 4 improperly interferes with the federal government's enforcement of U.S. immigration law as the Biden administration claims.
Circuit Judge Priscilla Richman noted that no other state has claimed the right to remove people in the country illegally, suggesting that S.B.4's novelty may be enough to temporarily stop it from being enforced.
"This is not a power that has been exercised historically by states," Richman, an appointee of Republican former President George W. Bush, told Aaron Nielson, a lawyer for the state.
Nielson seemed to struggle to answer Richman's repeated questions about how the law would work in practice and not impede federal immigration officials. He maintained that S.B. 4 mirrors federal law making it a crime to illegally enter the United States, and that the state's ability to arrest migrants falls within its traditional powers to ensure public safety.
"Texas has a right to defend itself," he said.
Circuit Judge Andrew Oldham, an appointee of Republican former President Donald Trump, said he was skeptical the Biden administration could show that the entire law was likely invalid, which is required to continue to block it while the court considers the merits of the legal challenge.
“When it comes to who gets to be in the United States, that’s exclusively federal. But that’s not what we’re talking about,” Oldham said to Daniel Tenny of the U.S. Department of Justice, who represents the Biden administration.
Oldham was previously general counsel to Republican Texas Governor Greg Abbott, who has repeatedly clashed with the Biden administration over border policies.
Tenny in response to Oldham said that the entire law interferes with federal enforcement, and added that the 5th Circuit could narrow the block on the law to specific provisions that it finds problematic.
The panel includes Circuit Judge Irma Carrillo Ramirez, a Biden appointee who did not speak during the arguments.
LEGAL BATTLES
The 5th Circuit had initially paused the ruling blocking S.B. 4 and the U.S. Supreme Court upheld that decision on Tuesday, briefly allowing Texas to enforce the law. But in an unusual move hours later the 5th Circuit panel scheduled an emergency hearing for Wednesday and reversed its earlier ruling in a 2-1 vote, with Oldham dissenting.
The dispute over the Texas law is one in a series of legal battles between Republican state officials and the Biden administration over the state's ability to police the border. Texas officials have blamed Biden for an influx in illegal border crossings that they have said drains states resources and threatens public safety, but the Biden administration has said interference from Texas and other states only compounds the problem.
In ruling to block S.B. 4 last month, U.S. District Judge David Ezra agreed with the Biden administration that the state law was invalid under a 2012 U.S. Supreme Court ruling involving an Arizona immigration law that said states cannot adopt immigration enforcement schemes that clash with federal law.
Tenny on Wednesday told the 5th Circuit that upholding S.B. 4 would upend precedent and mean every state could adopt its own policies that potentially clash with federal law.
“This entire scheme is exactly what the Supreme Court warned against in Arizona,” Tenney said. “The federal government has to have control over the immigration system.”
Tenny was joined at Wednesday's arguments by Cody Wofsy of the American Civil Liberties Union, who told the court that an estimated 80,000 people could be arrested in Texas each year if S.B. 4 takes effect.
"It's creating an entirely new system where people are going to be subjected to a state-made, state-run system with no access to federal relief" such as asylum, he said.