Supreme Court Justice Sonia Sotomayor gave a strict rebuke of her colleagues Tuesday for inviting “chaos and crisis” after the high court lifted a pause on controversial legislation giving Texas broad powers to enforce immigration law at the U.S.-Mexico border.
The court’s conservative majority ruled to reject an emergency application from President Joe Biden’s administration, allowing Texas Senate Bill 4 to go into effect while the question of its legality plays out in lower courts. But S.B. 4 quickly went back on hold later Tuesday following an appeals court decision.
The legislation would permit Texas law enforcement officials to arrest anyone they suspect of crossing the border illegally, charge them with crimes ranging from misdemeanors to felonies, and punish them with jail time or deportation.
The Supreme Court’s 6-3 order, which was praised by Republican Texas Gov. Greg Abbott, did not weigh in on the law’s constitutionality. But the ruling drew blistering dissent from Sotomayor, as well as fellow liberal Justices Ketanji Brown Jackson and Elena Kagan.
In a dissent joined by Jackson, Sotomayor wrote that the high court invited “further chaos and crisis in immigration enforcement” by allowing the Texas law to go into effect without first giving “careful and reasoned consideration” to its constitutionality, since the issues underlying arguments over S.B. 4 are serious and unprecedented.
“Texas passed a law that directly regulates the entry and removal of noncitizens and explicitly instructs its state courts to disregard any ongoing federal immigration proceedings,” she said. “That law upends the federal-state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.”
On Feb. 29, U.S. District Judge David Alan Ezra had blocked S.B. 4 with a preliminary injunction, saying that the law amounts to “nullification of federal law and authority — a notion that is antithetical to the Constitution and has been unequivocally rejected by federal courts since the Civil War.”
Ezra’s ruling was then effectively reversed by an “administrative stay” from the U.S. Court of Appeals for the 5th Circuit, though it provided a seven-day pause on its decision to give the federal government a chance to go to the U.S. Supreme Court. The high court then temporarily halted the appeals court decision before letting it proceed Tuesday, allowing S.B. 4 to go into effect.
Just hours after the Supreme Court’s ruling, the 5th U.S. Circuit Court of Appeals decided 2-1 to lift its administrative stay on Ezra’s injunction ahead of arguments before the court Wednesday, putting the law back on hold.
On Tuesday, conservative Justice Amy Coney Barrett wrote that the high court’s ruling was motivated by a desire to let the 5th Circuit manage its own docket, and that justices should not “invite emergency litigation” at this point in the case because the 5th Circuit’s stay was “administrative.”
Barrett suggested that the decision to let the Texas law go into effect stemmed from the technicalities of the appeals process, rather than support for S.B. 4.
“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 wrote in her opinion, which was joined by fellow conservative Justice Brett Kavanaugh.
“I would not get into the business. When entered, an administrative stay is supposed to be a short-lived prelude to the main event: a ruling on the motion for a stay pending appeal.”
But Sotomayor did not buy her conservative colleagues’ excuse that the Supreme Court’s decision was simply due to docket management, stressing that the 5th Circuit “abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo” — a move she said “opened the door” to chaos. She argueed that her fellow justices made “the same mistake.”
“This Court stands idle,” she wrote. “Because I cannot, I dissent.”