‘Maybe Texas went too far’ with immigration law, state lawyer tells federal court

Originally Published: 03 APR 24 11:00 ET

Updated: 03 APR 24 12:51 ET

By Devan Cole and Tierney Sneed, CNN

(CNN) — An attorney defending Texas’ controversial immigration law told a federal appeals court on Wednesday that state legislators may have gone “too far” when they passed the law last year.

The law, known as SB4, makes entering Texas illegally a state crime and allows state judges to order immigrants to be deported.

At a hearing before the 5th US Circuit Court of Appeals, Texas Solicitor General Aaron Nielson said that when designing the law, lawmakers sought to go “up to the line” in terms of what Supreme Court precedent allows states to do.

But, Nielson added: “Now, to be fair, maybe Texas went too far.”

Nielson is arguing before a circuit panel that has already paused the law from going to effect while the court further examines the statute. Nielson sought to downplay how sweeping the law was and argued it did not interfere with federal authority on immigration.

On Wednesday, Nielson said that, under the Texas Attorney General’s office interpretation of the state law, the migrants subject to state court deportation orders would be turned over to federal immigration authorities at border ports and then the federal officials would determine whether they should be released into the United States while they await further proceedings.

Chief Circuit Judge Priscilla Richman, a conservative judge who was the key swing vote in the 2-1 panel decision last week that temporarily paused the law, was skeptical of Nielson’s attempts to limit the state law’s scope.

“What has the statute accomplished?” She asked Nielson.

An attorney for the Justice Department, which brought one of the lawsuits challenging the Texas statute, urged the appeals court not to depart from its previous ruling blocking the law.

“Nothing that has happened this morning provides any basis for deviating from the analysis set out in this Court’s stay opinion,” DOJ attorney Daniel Tenny told the appeals court Wednesday.

Judge Andrew Oldham, the only member of the panel who appears ready to uphold the law, peppered Tenny with questions that sought to undermine the arguments pushed by the administration and other plaintiffs in opposition to the law.

“Never in the history of the nation has the United States achieved what they’ve achieved in this case, which is a facial invalidation of a statute that never went into effect,” he said at one point. “It’s an extraordinary achievement that the United States has won.”

Nielson, meanwhile, told the court that SB 4 was the state’s attempt to enforce federal immigration laws he claimed the Biden administration was ignoring.

“Of course, we know that presidents come and go, and different administrations might very well enforce federal law differently,” he said, arguing that the law may not be necessary under a different presidential administration.

He went on to say that if the court finds that some aspects of the Texas law are invalid, it should not strike down the entire law but instead “sever” those parts to let the other provisions remain on the books.

Wednesday’s hearing was the latest episode in a complicated legal drama surrounding SB 4 that has seen the law take effect for several hours one day last month after the US Supreme Court permitted its enforcement – only for the appeals court to block it in an unexpected order later that night.

The law was initially blocked by a federal judge in late February. The preliminary injunction came in response to lawsuits brought against Texas by the Biden administration, El Paso County and two immigrant advocacy groups.

In the order last month denying Texas’ request to enforce the law while their appeal of the injunction plays out, Richman said that the law likely violated the Constitution and Supreme Court precedent.

Legal experts have said that if the Texas case lands before the high court, it could give the justices a chance to revisit the 2012 ruling and potentially upend the federal government’s long-held authority over US immigration matters.

This story has been updated with additional details Wednesday.

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