By BETHANY BLANKLEY | THE CENTER SQUARE

Texas law enforcement can begin charging illegal border crossers with a state crime after the U.S. Supreme Court issued a procedural ruling Tuesday.

The court issued two rulings in less than 24 hours this week, ultimately allowing Texas’ border bill, SB 4, to go into effect. The opinion sends the case back to the Fifth Circuit Court of Appeals to hear arguments on the merits. 

On Monday, Supreme Court Justice Samuel Alito issued a third extended stay on the initial stay he ordered on March 4 to prevent the law from going into effect on March 5 until the court could rule on the matter. 

Alito first stayed a Fifth Circuit ruling that was issued for two consolidated lawsuits filed by the Department of Justice and El Paso County and nonprofit organizations, respectively. The two lawsuits were filed after Gov. Greg Abbott signed SB 4 into law, which makes illegal entry into Texas from a foreign nation a state crime.

In February, U.S. District Judge David Ezra ruled against the law. On March 5, the Fifth Circuit overturnedExra’s ruling and the consolidated cases were appealed to the Supreme Court. The high court was asked to block the law from going into effect as the Fifth Circuit heard the case on the merits. 

The Supreme Court, in a 6-3 decision, denied that request Tuesday, allowing the law to go into effect. 

In response to the ruling, Gov. Greg Abbott said, “In a 6-3 decision SCOTUS allows Texas to begin enforcing SB4 that allows the arrest of illegal immigrants. We still have to have hearings in the 5th circuit federal court of appeals. But this is clearly a positive development.”

The ruling states, “the applications to vacate presented to Justice Alito and by him referred to the Court are denied. The orders heretofore entered by Justice Alito are vacated.” 

Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote a five-page ruling for the majority. Justice Sonia Sotomayor, joined by Justice Ketanji Jackson, wrote a 10-page dissent. Justice Elena Kagan wrote a two-page dissent. 

The ruling centers around the legality of issuing an administrative stay and does not address the case’s merits, punting the case back to the Fifth Circuit. 

If the Fifth Circuit had issued a stay pending appeal, Barrett wrote, the Supreme Court would have applied a four-factor test to rule on the case. But because it exercised its docket management authority to issue a temporary administrative stay and deferred the stay motion to a merits panel, she said, the court “has not yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture.”

She then went on to describe the process of administrative stays and the hesitation to rule on a case due to procedural reasons. 

“So far as I know, this court has never reviewed the decision of a Court of Appeals to enter – or not enter – an administrative stay,” she said. “I would not get into the business. When entered, an administrative stay is supposed to be short-lived prelude to the main event: a ruling on the motion for a stay pending appeal. I think it unwise to invite emergency litigation in this court about whether a court of appeals abused its discretion at this preliminary step – for example, by misjudging whether an administrative stay is the best way to minimize harm while the court deliberates.”

Sotomayor and Jackson said the decision “invites further chaos and crisis in immigration enforcement,” and the Fifth Circuit issued its ruling “with no reasoned analysis.”

“Texas can now immediately enforce its own law imposing criminal liability on thousands of noncitizens and requiring their removal to Mexico,” they lamented. As a result, the Supreme Court gave “a green light to a law that will upend the longstanding federal-state balance of power and sow chaos, when the only court to consider the law concluded that it is likely unconstitutional.”

While they debated aspects of administrative stays and attacked the merits of Texas’ law, they also attacked the Fifth Circuit. They said, “Texas’s novel scheme requires careful and reasoned consideration in the courts. The District Court gave S. B. 4 careful consideration and found that it was likely unconstitutional. The Fifth Circuit has not yet weighed in, but nevertheless issued a one-sentence administrative order that is maximally disruptive to foreign relations, national security, the federal-state balance of power, and the lives of noncitizens. The Court should not permit this state of affairs.”

Justice Kagan said she didn’t think the Fifth Circuit’s use of an administrative stay versus a stay pending appeal “should matter. … But a court’s unreasoned decision to impose one for more than a month, rather than answer the stay pending appeal issue before it, should not spell the difference between respecting and revoking long-settled immigration law.”

When signing SB 4 into law, Abbott said President Joe Biden’s “deliberate inaction has left Texas to fend for itself,” pointing to Article 1 Section 10 of the U.S. Constitution, which empowers states “to take action to defend themselves and that is exactly what Texas is doing.”

The law stipulates that repeat offenders who illegally reenter Texas can face a prison sentence of up to 20 years. It also gives law enforcement officials the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry.