By: Kristin Etter and Priscilla Lugo
On February 15, 2024, in Austin at the federal courthouse, Judge David Ezra heard oral arguments from the State of Texas, the Department of Justice, and the organizational plaintiffs regarding SB 4, the illegal entry and reentry bill from the fourth special session of the 88th legislature. Below is a summary of the arguments presented.
The Department of Justice:
Opening Statement
Presenting the arguments of the Department of Justice was Brian Boynton, deputy assistant attorney general. The Department of Justice began their oral arguments by summarizing the preemption questions in Arizona v. United States because there was a conflict between federal interest and the federal legislative regime for entry and removal of non-citizens. In the Arizona case, the Supreme Court decided that the federal government had a clear interest in foreign security and foreign relations. In SB 4, Texas argued against field preemption and the lack of case law to substantiate the DOJ’s case. However, the DOJ posed a question as to why the state is not seeking to collaborate on enforcement, and that is because they are seeking to enjoin legislation instead. Texas cited that it needs to enforce its own law because the federal government is not enforcing immigration laws, but Mr. Boynton said that the state ignores the fact that the Department of Homeland Security has removed the most individuals since 2015.
Conflict Preemption Issue
Conflict preemption provides that when state and federal law conflict, federal law preempts state law due to the Supremacy Clause of the Constitution. Attorney Boynton posed five arguments to show that there is a conflict preemption of SB4:
- The Immigration and Nationality Act (INA) says that the states may play a role in cooperation but cannot play the same role in the enforcement or legislation of immigration.
- Federal interests in immigration are strong because it involves foreign affairs, and the federal government must have control over the foreign affairs of the country.
- SB4 disregards the elaborate process the federal government has had in place regarding the removal of non-citizens. SB 4 is not parallel to U.S. Code 1325, 1326. There are protections for noncitizens in federal law such as asylum, CAT (Convention Against Torture), and withholding of removal, but the SB4 does not provide any protections. Every person prosecuted under SB 4 will be returned to Mexico – even if they are not Mexican nationals, and Mexico has said that they do not want to accept non-Mexican nationals. Mr. Boynton also posed that the state has no mechanism for state judges to determine “lawful presence.” Furthermore, regarding the illegal re-entry, there is no defense for those paroled into the country by the federal government causing SB 4 to be in direct conflict with federal law. In addition, it is highly problematic that SB4 specifically provides that a prosecution may not be abated for a non-citizen with a pending immigration application.
- SB4 requires judges to determine lawful presence in violation of the 5th Circuit caselaw Farmers Branch which stated that state officials cannot make immigration determinations because it is conflict preempted under federal law.
- The justification of an “invasion” does not meet the legal definition and therefore is not a valid point. The State of Texas is not engaging in a “war,” they are doing immigration enforcement, and they are not allowed to violate federal laws by declaring they are engaging in “war.” In addition, there are no time limits on SB4, and the laws will still be applicable even after the “disaster” subsides.
Invasion Issue
The DOJ listed five reasons why there is not an “invasion.” First, an influx of migrants cannot be an invasion under current federal caselaw precedent. Second, Texas is not engaging in war by enacting the new crimes in SB4. Third, even if it was considered an “invasion,” Texas is not allowed to violate federal law in its response. Fourth, if it were an “invasion,” in theory, Texas could take some action but there would be some time limitation to that, Operation Lone Star has been ongoing for years and there is no sunset provision in SB4. Fifth, the political question doctrine limits the ability of the federal courts to decide a case.
Foreign Commerce Clause Issue
The DOJ countered the argument that SB4 does not impede foreign commerce because the law is discriminatory as it only applies to noncitizens and impedes on the federal government’s ability to negotiate with Mexico. This could implicate foreign relations and potentially cause the reciprocal mistreatment of Americans aboard. Furthermore, the movement of people is commerce and affects commerce. If the state wanted to cooperate with federal officials, they could enter 287(g) agreements.
The Organizational Plaintiffs:
Senior Staff Attorney at the ACLU’s Immigrants’ Rights Project, Anand Balakrishnan, presented the oral arguments for the organizational plaintiffs. Due to the time being split between both plaintiffs, the organizational plaintiffs chose to use their limited time mostly on the rebuttal but posed these two main points in their oral arguments regarding the illegality of SB4.
- The impact of the removal provision is being understated and clearly contradicts federal protections. At this point, Judge Ezra posed that usually organizations say that the federal government moves too quickly in removal proceedings, to which Mr. Balakrishnan responded that while that is true, SB 4 would be even worse than federal practices. The state punishment for failure to comply with a removal order is 2-20 years in state prison, which leaves individuals unable to access protections or risk punishment if they try to access them.
- For victims of crime, such as domestic violence, and human trafficking, under federal protections, they would be eligible for a U visa, but in order to apply for and qualify for the visa, they would be required to cooperate with law enforcement to report the crime, and individuals might not be willing to go to law enforcement to report out of fear of prosecution raising concerns about public safety for the community and state at large. Victims are going to be arrested and deported under SB4.
The State of Texas
Ryan Walters, Assistant Attorney General VII at the Office of the Attorney General for the State of Texas, presented oral arguments for the state. Originally allotted one hour for arguments, due to the time it took to answer the judge’s questions, Judge Ezra provided the state with an extra 15 minutes to present their arguments.
Pre-enforcement Challenge Issue
The state began by saying that the pre-enforcement challenge that individuals would be unable to access protections is misleading. He cited that arrests under SB4 would not be the first time that the state has “aliens” in custody and that the Texas Department of Criminal Justice (TDCJ) does not forbid them from accessing protections. While it is too early to cooperate with the federal government, TDCJ normally reaches out to ICE which places a detainer on the individual. At this point, Judge Ezra interrupted to indicate that Texas has not lost the sovereignty to pursue prosecution of criminal trespass. He noted that we are present because SB4 goes beyond criminal trespass under Operation Lone Star, because if it did not the state would not need to pass this legislation. He also noted that the state court would order a return to Mexico. At which point, Mr. Walters noted that they had a declaration from a Department of Public Safety Regional Director of South Texas, Victor Escalon, that DPS would contact the Mexican government and Customs and Border Protection (CBP) to coordinate deportation, and if Mexico would not accept that individual, then they would not be forced to go to Mexico.
As a follow-up, Judge Ezra asked what would happen to those whom Mexico has not accepted, but the state has already issued a deportation order, and Mr. Walters responded that they would then go into the custody of CBP. To this point, Judge Ezra noted that there should have been a lot more care going into drafting the law and that the state should not be arguing a law based on what people think they will do to enforce it, but what the text of the law says. In response, Mr. Walters stated that SB 4 does not say anything about preemption but that it should be read into the law, and regarding Arizona, there are assumptions that this law is read in isolation, but it should not be.
Judge Ezra then countered that even according to the late Supreme Court Justice Antonin Scalia, immigration and deportation are strictly under federal purview. Mr. Walters responded that the state orders to removal are not deportations because they can be removed by choice before they are sentenced, to which Judge Ezra responded, “The point is they get sentenced.” Judge Ezra continued that no state judge has a lifetime tenure and that U.S. magistrate judges may not oversee felony cases, but that federal law required Article 3 judges for federal crimes. Mr. Walter responded that “state courts apply federal law all the time.”
Field Preemption Issue
Regarding the argument of field preemption, where the federal government can fully occupy the field, it has chosen to regulate, Mr. Walters stated that federal provisions of the law allow states to enforce who enters the state. SB 4 involves things happening at the border does not have more severe penalties and does not conflict with federal law. Mr. Walters also harkened back to the late 1800s when states were able to regulate immigration law. Judge Ezra then asked what happens if other states implement their own SB4, then each state would have their own immigration law and would be interpreting it differently and we would turn the United States into a confederacy which would be a “nightmare,” according to Judge Ezra.
Invasion Issue
As for the justification of using an “invasion” to implement SB 4, Mr. Walters argued that an influx of migration is an invasion and that the presence of the cartel and its criminal activity gives the cartel quasi-authority. Judge Ezra asked that if the US is being invaded, does the constitution give the state authority to act as it has and wants to act? Judge Ezra noted that there is no evidence that Texas is at war even though the Texas Military Department is involved. Mr. Walters indicated that SB 4 is a response to an invasion of “enemies to the human race” such as pirates were and should be treated as criminals in criminal law.
Judge Ezra posed another question that an invasion requires a “war-like” invasion, and he has not seen evidence that Texas is at war. He acknowledged that Texas is under pressure due to the influx of people arriving at the border but raised the concern that there is no sunset provision for SB 4 and that if illegal immigration is stopped, SB would still carry on. Mr. Walters argued that the invasion clause is not the sole basis of SB 4 and that SB 4 is complementary to the federal provisions. The invasion clause calls for an avoidance argument to “harmonize state and federal law” if there has been true conflict and the federal government has not been protecting states from the invasion and as such, the state’s war powers are justified. Mr. Walters also stated that because these lawsuits were filed preemptively, the plaintiffs have failed to show how Texas conflicts with federal law.
Conflict Preemption Issue
Mr. Walters continued that the DACA ruling in October 2022 shows that entry is exclusively a federal function and that the classification of aliens was also exclusively a federal function. In the DAPA ruling, the Texas driver’s license law adopted a “lawful presence” definition and proved that Texas was not wrong in adopting a federal definition without providing its own definition.
Mr. Walters cited Kansas v. Garcia, which decided that the conflict must be with a federal statute, not enforcement. As such, there is no evidence that SB 4 would operate differently than other laws where undocumented people can be arrested and jailed, but still able to access the federal immigration system. Judge Ezra interrupted and stated that under SB4, Texas can remove people with pending asylum claims because a pending case does not abate prosecution. Judge Ezra stated that this “slaps federal immigration provisions in the face” because prosecutions end upon conviction and sentencing.
Foreign Commerce Issue
Finally, Mr. Walters addressed the concerns regarding foreign commerce and argued that SB 4 does not disturb commerce because human smuggling is part of an illegal and unlawful black market. He concluded that the organizational plaintiffs do not have Article 3 standing because the lawsuit they filed was before implementation, although he acknowledged that the Department of Justice does have standing.
Department of Justice Rebuttal:
Attorney Boynton presented the DOJ’s rebuttal. He argued that preemption is raised in prosecution and that the federal law is clear as cited in 8 USC 1229(a) which provides the federal government has the sole and exclusive authority to allow, enter, and expel someone from the country. The state of Texas suggested that individuals could apply for asylum inside state jail facilities, but Judge Ezra agreed that it leaves state judges unclear on which law to follow, and will one way or another, end up violating either state or federal law depending on how they rule.
Mr. Boynton cited the Escalon declaration (the declaration from the Regional Director, South Texas, Department of Public Safety) and refuted that a person’s state removal order won’t require a person to return to Mexico because the declaration states that “upon witnessing the noncitizen cross to the Mexican side of the international bridge, the officer will consider the noncitizen to have complied with the return order” which makes it crystal clear that Texas will force people to return to Mexico. He also refuted that SB4 is like prosecutions occurring under Operation Lone Star because the criminal trespass prosecutions do not have a removal order which makes them inherently different. He also argued that there is no basis for field preemption because the INA says that states can help with enforcement but cannot legislate.
In response to Kansas v. Garcia, Mr. Boynton argues that the law was parallel to federal law and that the case was different than Arizona because it was not an immigration law. As for the invasion argument, the avoidance claim only applies when there is ambiguity, and he argued that there is none.
Finally, in response to the state’s argument that SB 4 does not interfere with foreign commerce laws, Mr. Boynton argues that SB 4 is discriminatory, as the movement of people is commerce, and their unlawful presence is irrelevant. Unlawful commerce does not mean that it is not part of the federal regulatory purview and cites drug and gun laws as evidence.
Organizational Plaintiffs Rebuttal:
Mr. Balakrishnan issued the rebuttal for the organizational plaintiffs and posed that what is important to look at is the text and the textual clues it provides to indicate how SB 4 will be applied beyond the border which are 1) the exclusion of sensitive locations and 2) authorization of all peace officers as enforcers.
Judge Ezra asked Mr. Balakrishnan to address the state’s arguments for their lack of standing, to which he responded that Texas’s Susan B Anthony test is not the appropriate test as it falls outside of the bounds.
Finally, to conclude the hearing, Mr. Balakrishnan argued that there have been 150 years of SCOUTS rulings that show that the role of entering, and removal is the sole and exclusive province of the United States which contradicts the state’s arguments regarding the lack of case law to substantiate the plaintiffs’ case.
Conclusion of Hearing
To end the hearing, Judge Ezra said that he would take his time to review the case, the filings, and the arguments and try to issue a decision in a timely manner before the implementation date of March 5 to provide enough time to file an appeal. Judge Ezra declined the State’s request that he stay his ruling pending an appeal.
