A three-member panel of the appeals court decided 2-1 to deny the request by Texas to suspend an order by a lower court that ruled the law unconstitutional.
The appeals court ruling means the state law, known as Senate Bill 4, will remain on hold while lawsuits seeking to overturn it make their way through the courts.
The same three-judge panel based in New Orleans has scheduled a hearing April 3 to consider Texas’s appeal of a lower-court ruling last month that temporarily blocked the law from taking effect because the judge found it is probably unconstitutional.
Texas Republicans, led by Gov. Greg Abbott, passed the law last year, after accusing President Biden of weak border enforcement. U.S. authorities have apprehended an average of 2 million migrants a year who crossed the U.S.-Mexico border illegally since Biden took office, the highest the Border Patrol has ever recorded.
Democrats have countered that Republicans are refusing to pass a bipartisan Senate bill that would address the influx by expanding enforcement. The Biden administration has accused Republicans of stalling in response to former president Donald Trump, an immigration hard-liner who denounced the bill and is the likely Republican nominee to challenge Biden in November’s presidential election.
The Texas law makes it a crime for a noncitizen to enter the state illegally from another country. Migrants convicted of violating the law could face up to six months in jail, while those who return after having been deported could face felony charges and a maximum of 20 years in prison.
The law also authorizes state judges to order deportations to Mexico. President Andrés Manuel López Obrador, however, has said his government would reject any attempt by Texas officials to send migrants to Mexico.
On Feb. 29, U.S. District Judge David A. Ezra, a Republican appointee in Austin, blocked the law from taking effect and said it intruded more into federal powers over immigration than an Arizona immigration law that the Supreme Court partly struck down in 2012.
The judicial rulings are in response to a pair of lawsuits filed against the Texas law, one from the Biden administration in January and another last year by a pair of Texas nonprofit groups and the county government of El Paso.
At least one other lawsuit has been filed against the state law, on behalf of a Texas community organization, La Union del Pueblo Entero (LUPE), and four unidentified immigrants who allege they are eligible to stay in the United States legally but could be targeted for deportation under Texas’s law. That lawsuit has been pending since March 12.
In its decision to continue blocking the law, the 5th Circuit appeals court noted: “For nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power. Despite this fundamental axiom, [Senate Bill 4] creates separate, distinct state criminal offenses and related procedures regarding unauthorized entry of noncitizens into Texas from outside the country and their removal.” The 50-page ruling added that “the Texas entry and removal laws also significantly impair the exercise of discretion by federal immigration officials.”
The decision was written by Chief Judge Priscilla Richman, a nominee of President George W. Bush, and joined by Circuit Judge Irma Carrillo Ramirez, who was nominated to the federal bench by President Biden.
In a 70-page dissent, Judge Andrew S. Oldham, a nominee of President Donald Trump and former general counsel to Abbott, argued that the ruling “means the State is forever helpless: Texas can do nothing because Congress apparently did everything, yet federal non-enforcement means Congress’s everything is nothing.”