Texas immigration controversy reignites fight over Arizona ‘show me your papers’ law

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By journalsofus.com


The legal battle for a Controversial Texas immigration law It could eventually give the Supreme Court a chance to review a landmark ruling that largely overturned Arizona’s “show me your papers” law and reaffirmed the federal government’s “broad and undoubted power” over immigration.

Texas SB 4, which allows state officials to arrest and detain people suspected of entering the country illegally, returns to the courtroom of the 5th U.S. Circuit Court of Appeals in New Orleans on Wednesday.

The law is on hold after three judges blocked it while they consider whether it is constitutional. That same panel will hear arguments Wednesday.

The majority ruling in last month’s 2-1 decision leaned heavily on the 2012 Supreme Court case known as Arizona v. United States, in which the high court struck down several provisions of an Arizona law, the SB 1070, intended to deter illegal immigration.

Legal experts believe the Texas case could eventually give the conservative-majority Supreme Court a chance to reexamine the federal government’s long-held control over immigration policy.

“This would probably be one of the most radical changes the Supreme Court has ever made in the immigration field,” said Andrew Schoenholtz, a Georgetown Law professor and immigration law expert, referring to the possibility of the high court overturning his 2012 ruling. “It’s a big change that Texas is asking for.”

Denise Gilman, a professor at the University of Texas School of Law, agreed that the state’s goal is to get judges to overturn Arizona’s decision.

“It would have been incredibly difficult for the Fifth Circuit to allow this law to stand under existing Supreme Court precedent,” he said. “The Supreme Court is another matter. The Supreme Court can overturn its own precedent, and that is clearly what the state of Texas wants it to do.”

SB 4 was initially blocked by a federal judge in late February in a pair of cases brought by the Biden administration, two immigrant advocacy groups and El Paso County. Texas quickly appealed that decision to the Fifth Circuit. Meanwhile, the Supreme Court had allowed the state to enforce the law for a brief period on March 19, only for the appeals court to put it back on hold hours later.

The Arizona law is a prime example of what happens when states try to take immigration policy into their own hands.

Arizona’s then-Republican governor Jan Brewer signed the Supporting Our Law Enforcement and Safe Neighborhoods Act, known as SB 1070, into law in 2010.

Chief among the law’s provisions was one that allowed police to check a person’s immigration status during traffic stops or other law enforcement actions if the officer had “reasonable suspicion” to believe the person was in the country illegally. That part of SB 1070 led critics to call it the “show me your papers” law.

SB 1070 also made it a state crime for “unauthorized immigrants” to fail to carry registration documents and other government identification; prohibited persons not authorized to work in the U.S. from soliciting, soliciting, or performing work; and authorized police to arrest undocumented immigrants without a warrant when there was “probable cause” that they committed a crime that would make them deportable.

Legal challenges to the law quickly arose. The Supreme Court upheld the “show me your documents” part of the law and struck down the other three parts.

Perhaps most importantly, the majority ruling authored by Justice Anthony Kennedy reaffirmed the federal government’s authority over immigration. The block of five justices said that “the federal power to determine immigration policy is well established” and that its “authority rests, in part, on the constitutional power of the National Government.” ‘establish a uniform rule of naturalization’.

“The National Government has significant power to regulate immigration,” Kennedy wrote. “Arizona may have understandable frustrations with the problems caused by illegal immigration as that process continues, but the State cannot pursue policies that undermine federal law.”

Gilman said the court’s decision in Arizona is important because Texas’ SB 4 essentially contains the concepts the court struck down in that case.

“The (Arizona) law that criminalized immigration status was struck down by the Supreme Court for being in conflict with federal authority to regulate the enforcement of immigration law,” he said. “And that’s a really important part of what Texas law states.”

Among the three justices who dissented in the 2012 case, two are still on the court: Justices Clarence Thomas and Samuel Alito. Justice Antonin Scalia died in 2016 (Justice Elena Kagan disqualified herself from the 2012 case).

Jessica Bulman-Pozen, a Columbia Law School professor who specializes in federalism, said the arguments presented by Texas in defense of SB 4 are closer to the dissent written by Scalia, which concluded that the Arizona law was enacted in an effort to enforce federal laws. immigration law “more effectively.”

“The court didn’t think that was correct as a descriptive matter of what was happening in Arizona, and I think it’s even more clearly incorrect here with respect to Texas,” Bulman-Pozen said, referring to the majority’s rejection of Arizona’s argument. that he was trying to address the Obama administration’s alleged inaction on immigration issues.

“The idea that what (Texas is) doing is, in fact, asserting some kind of congressional ruling or law against an executive who doesn’t enforce (those laws), I don’t think is a fair description of what’s going on.” here,” he said. saying.

There is a considerable amount of daylight among the divided Fifth Circuit panel that is weighing the legality of SB 4.

“The Supreme Court authorities and the detailed legal scheme governing who will be allowed to remain in the United States and deportation proceedings clearly indicate that Congress ‘occupies’ [the] “The entire field” of illegal noncitizen entry and reentry, as well as expulsion,” Chief Judge Priscilla Richman wrote in a decision joined by Circuit Judge Irma Carrillo Ramirez.

But Circuit Judge Andrew Oldham – Alito’s former clerk – wrote in a lengthy dissent last week that he would have allowed Texas to enforce the law while legal challenges continue.

Oldham leaned toward a more limited reading of the Supreme Court’s 2012 decision in Arizona, saying it “certainly does not suggest that states can never supplement any federal immigration law.”

He argued that Arizona’s decision leaves some room for parts of SB 4 to withstand scrutiny, particularly the policy that allows Texas judges to order the deportation of immigrants.

“The Arizona Court did not hold – as plaintiffs seem to believe – that the State was excluded from the deportation field because of ‘some troubling federal interest’ such as foreign policy or national security,” wrote Oldham, who also previously served as general counsel. from Republican Texas Governor Greg Abbott, who signed SB 4 into law.

Texas lawyers have made those same claims.

“Arizona did not find that state laws regarding entry and expulsion took precedence on the ground, and nothing in Arizona prevents states from regulating entry and reentry or issuing return orders,” the attorneys wrote.

Whether those arguments matter at all before the highest court in the land if the case comes before the justices is another question.

“To the extent that the court reviews Arizona in this context, it would essentially be making states authorities with respect to entry and expulsion in the immigration space. And that would be an extreme departure from precedent in our nation’s history,” Bulman-Pozen said. “It would be quite shocking.”

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