A U.S. appeals court on Wednesday began hearing arguments on whether to continue blocking a Republican-backed Texas law that would empower state authorities to arrest and prosecute migrants and asylum seekers for 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 SB4 to take effect while the state appeals a judge’s ruling that blocked it pending the outcome of a challenge by the administration of Democratic President Joe Biden and civil rights groups.
Aaron Nielson, a lawyer for Texas, told the panel in opening remarks that SB4 mirrors U.S. immigration law and the judge was wrong to rule that it would interfere with federal enforcement.
“Texas has a right to defend itself,” Nielson said.
But he seemed to struggle to answer questions about how the law would work in practice from Circuit Judge Priscilla Richman, who noted that no other state has claimed the right to remove people in the country illegally.
“This is not a power that has been exercised historically by states,” she said.
Circuit Judge Andrew Oldham told Daniel Tenny, a U.S. Department of Justice lawyer who represents the Biden administration, that he was skeptical the Biden administration could show that the entire law was likely invalid, which is required to continue to temporary block it.
“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,” said Oldham, an appointee of former President Donald Trump.
Oldham was previously general counsel to Republican Texas Governor Greg Abbott, who has repeatedly clashed with the Biden administration over border security.
Tenny in response said that the entire law interferes with federal enforcement, but that the 5th Circuit could narrow the block on the law to specific provisions that it finds problematic.
The 5th Circuit had initially paused the ruling blocking SB4 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 reversed its earlier ruling in a 2-1 vote.
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