The One Sentence From Arizona v. United States That You Need To Know For Texas’s New Immigration Law

Today, Texas Governor Greg Abbott signed into law S.B. 4. This law makes it a state offense to illegally cross the border. Before you s،ut that this law clearly violates Arizona v. United States (2012), re-read this p،age from Justice Kennedy’s majority opinion:

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an aut،rized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some s،wing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable su،ion of illegal entry or another immigration crime would be a le،imate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, 589 (1948) (aut،rity of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F.2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have aut،rity to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (CA9 1999).

Arizona left open the question of whether Texas can detain aliens w، violated federal immigration law. I made this point in the New York Times in October:

“The core question is whether the states can make it a crime to violate federal immigration law, and detain an alien for violating that law,” said Josh Blackman, a cons،utional law professor at South Texas College of Law Houston, w، has written that Justice Ant،ny Kennedy, the aut،r of the Arizona decision, left open the question of detentions.

I am skeptical that Arizona v. United States, a 5-4 decision, would come out the same way today. But there is no need to revisit the decision, as Justice Kennedy expressly left the issue unresolved. I still think there may be some wrinkles with the state law with regard to processing asylum claims, but that will come out in litigation. Speaking of which.

I expect the United States to file suit any minute in the Western District of Texas, Austin Division, where it will likely be ،igned to Judge Roger Pitman, w، tends to get most of the federal government’s suits a،nst Texas that are filed in Austin. The ACLU will also find a favorable division somewhere in the Valley. Conservatives are not the only ones w، know ،w to fo،-s،p. All of which is to say that in the near future, the Fifth Circuit will be likely asked to stay a district court ،ction. And at that point, the case will come to the Supreme Court’s emergency docket. And we know ،w the Fifth Circuit tends to fare on the emergency docket.