Not All Stays Are Created Equal

Texas' SB4 Immigration Law Awaits Judicial Merit Review as Case Bounces from Supreme Court Back to Fifth Circuit

Senate Bill 4 (SB4), enacted by the Texas Legislature, represents a significant foray into immigration regulation, traditionally a domain reserved for the federal government. The law specifically criminalizes unauthorized entry into Texas, thereby expanding the scope of state criminal law into areas of immigration.

SB4 empowers state courts with the unprecedented authority to order the deportation of noncitizens, a function historically monopolized by federal agencies and courts. This legislative measure diverges markedly from the established principle that the federal government holds exclusive jurisdiction over immigration matters, including the conditions under which noncitizens may enter, reside in, and be removed from the United States.

The matter before the Supreme Court on an emergency order with requests to vacate the administrative stay granted by the Fifth Circuit, which had allowed Texas to enforce Senate Bill 4 (SB4) pending further legal proceedings. This emergent request to the Supreme Court sought immediate intervention to halt the enforcement of SB4, a law criminalizing unauthorized entry into Texas and permitting state-directed deportations, actions traditionally under federal jurisdiction.

The urgency of the request was driven by the immediate impact SB4's enforcement would have on noncitizens within Texas, potentially subjecting them to new criminal penalties and deportation by state authorities. This situation posed significant legal, constitutional, and human rights concerns, necessitating the Supreme Court's rapid consideration to either maintain the status quo by pausing SB4's implementation or to allow the state of Texas to proceed with enforcement as legal challenges continued through the judiciary.

The Supreme Court's decision to allow Texas to enforce Senate Bill 4 (SB4), albeit temporarily, through the denial of applications to vacate the administrative stay granted by the Fifth Circuit Court of Appeals, was a procedural technicality, not a substantive examination of the law’s merits.

The heart of this procedural maneuver lies in the nature and purpose of administrative stays, which are distinct from stays pending appeal. These are not decisions that reflect a court's judgment on the merits of a case; rather, they serve as a mechanism to pause proceedings, providing courts the necessary time to consider requests for urgent relief without making a preliminary assessment of the underlying arguments.

In its decision, the Supreme Court elucidated that the Fifth Circuit had opted for a temporary administrative stay—a tool within its docket-management prerogative—rather than a stay pending appeal, which would necessitate an evaluation based on the four-factor test established in Nken v. Holder¹. This test includes, among other considerations, an assessment of the applicant's likelihood of success on the merits.

The distinction is important; an administrative stay is procedural, aimed at freezing legal proceedings to allow for detailed consideration of emergency applications. This approach underscores the judiciary's need for deliberation in the face of complex legal questions, a principle echoed in previous cases like June Medical Services, L.L.C. v. Gee².

The Supreme Court’s reliance on procedural grounds, therefore, does not indicate its stance on SB4's legality or its compliance with constitutional standards. Instead, by refusing to vacate the Fifth Circuit's administrative stay, the Supreme Court effectively deferred to the appellate court's procedural management, leaving the substantive legal analysis for a later stage. This deference places the onus back on the Fifth Circuit to proceed with a more thorough examination of the case, including the potential issuance of a stay pending appeal after evaluating the merits as per the Nken factors.

Justice Barrett's concurring opinion, delineating the procedural posture of the case, highlighted the uniqueness of the scenario, wherein the Fifth Circuit had not rendered a decision on a stay pending appeal but had instead issued a temporary administrative stay. This procedural distinction, while nuanced, carries profound implications for the judiciary's engagement with emergency litigation and the precedence of appellate court discretion.

Justice Sotomayor's dissenting opinion articulates a profound concern regarding the encroachment of SB4 on the federal-state equilibrium in immigration enforcement. The assertion that SB4 constitutes a direct challenge to over a century of federal supremacy in immigration matters encapsulates the constitutional quandaries at play. The potential for SB4 to disrupt foreign relations, impede federal immigration enforcement, and infringe upon the rights and safety of noncitizens and asylum seekers underscores the law's far-reaching implications.

Hours after the U.S. Supreme Court allowed Texas to begin enforcing Senate Bill 4 (SB4), the 5th Circuit Court of Appeals intervened, reinstating a hold on the law.. this time pending appeal.

This procedural posture is emblematic of the judiciary's cautious approach to intervening in ongoing appellate processes, especially in cases involving emergency applications. It reflects a judicial preference for allowing appellate courts to first address the substantive issues at hand, thereby underscoring the importance of procedural mechanisms in managing the courts’ heavy caseloads and ensuring that each case receives the attention it demands. This approach, while necessary for judicial efficiency, leaves the substantive constitutional and legal questions surrounding SB4 unanswered for the time being, awaiting the Fifth Circuit's comprehensive review.

1. Nken v. Holder, 556 U.S. 418 (2009), established a four-part standard for courts to apply when determining whether to grant a stay of removal (deportation) pending judicial review of an immigrant's petition. Under this standard, the applicant must demonstrate: (a) a strong likelihood of success on the merits of the case, (b) that he or she would suffer irreparable harm if the stay is not granted, (c) that the issuance of the stay would not substantially harm the other parties involved in the proceeding, and (d) that the public interest would be served by granting the stay. This decision emphasized the discretionary authority of courts to balance these factors, ensuring that stays of removal are granted based on a holistic assessment of the case's specific circumstances rather than a rigid formula.

2. June Medical Services, L.L.C. v. Russo, 140 S. Ct. 2103 (2020), the Supreme Court's utilization of its emergency appeal mechanism underscores the judiciary's capacity to provide interim relief from potentially unconstitutional state laws pending comprehensive review. This case exemplifies the strategic role of emergency appeals in suspending the enforcement of legislation that is subject to judicial scrutiny, particularly where there are plausible allegations of constitutional infringement. The granting of an emergency stay in this instance served not only to prevent the immediate application of the contested Louisiana law but also to reaffirm the judiciary’s imperative to ensure that lower courts' decisions undergo meticulous examination at higher levels when fundamental rights are at stake.