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Supreme Court allows Texas police to make arrests in illegal border crossings

The Supreme Court has green-lighted a controversial immigration law in Texas, allowing local law enforcement officials to arrest people crossing the US-Mexico border illegally.

Just one day after ordering the law, known as SB4, to remain paused, the court issued a 6-3 decision rejecting the Biden administration’s emergency request.

The law will now be permitted to go into effect while litigation at lower courts is pending. While it is allowed for now, it could be blocked at a later date.

The court’s conservative majority did not give a reason for refusing the stay. In a concurring opinion, Justices Amy Coney Barrett and Brett Kavanaugh argued that the Fifth Circuit Court of Appeals hadn’t decided yet.

"If a decision does not issue soon, the applicants may return to this court,” Justice Barrett wrote.

The liberal justices dissented from the decision, Justice Sonia Sotomayor wrote it “invites further chaos and crisis in immigration enforcement.”

SB4 makes it a crime for individuals to cross the US–Mexico border illegally and gives law enforcement the authority to charge them with a Class B misdemeanour which carries a maximum sentencing of six months in jail. Second offenders could face second-degree felony charges and up to 20 years in prison.

A Texas National Guard soldier puts up additional razor wire at the U.S.-Mexico border in El Paso, Texas on January 31, 2024 across from Ciudad Juarez, Mexico (Getty Images)
A Texas National Guard soldier puts up additional razor wire at the U.S.-Mexico border in El Paso, Texas on January 31, 2024 across from Ciudad Juarez, Mexico (Getty Images)

The temporary decision is a win for Texas Governor Greg Abbott who has pushed aggressive legislation to stop migrants from crossing the border and impose penalties for doing so.

Critics of the bill have called it an “extreme” piece of anti-immigration legislation.

The bill, which Mr Abbott signed in December, was set to go into effect earlier this month. The Justice Department as well as immigration advocacy groups petitioned federal courts to intervene and pause the law from taking effect in the meantime. The Fifth Circuit allowed the law to go forward while litigating.

The Biden administration then asked the Supreme Court to stay the law which it did earlier this month and last week.

But on Tuesday the conservative majority said they would wait to issue a formal ruling or opinion on the emergency order until the Fifth Circuit did.

Justice Sotomayor disagreed with the conservative justices’ decision to pause intervening until the Fifth Circuit makes a decision.

“Although the Court today expresses no view on whether Texas’s law is constitutional, and instead defers to a lower court’s management of its docket, the Court of Appeals abused its discretion by entering an unreasoned and indefinite administrative stay that altered the status quo,” Justice Sotomayor wrote.

In their fight to let SB4 continue, Texas argued that the state was authorised to defend itself under Article I, Section 10 of the Constitution which allows states to engage in war on their own if they are “actually invaded.”

The Justice Department said the bill conflicts with federal law – typically the government body responsible for immigration enforcement.

Adriana Piñon, the legal director at the ACLU of Texas, said in a statement, “We disagree with the court’s decision and the implementation of this unconstitutional and extreme anti-immigrant law will likely be disastrous for both Texans and our legal system. SB4 threatens our most basic civil and human rights as citizens and non-citizens alike and we recommend anyone threatened by this, including people who fear racial profiling, to remember their rights. We will continue our efforts to halt this hateful law.”