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Appeals Court: Texas law making illegal border crossing a state crime can stand

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A federal appeals court ruled Monday that a new Texas law can stand that makes illegal entry into the state from a foreign nation a state crime, overturning a lower court ruling.

Gov. Greg Abbott said the ruling allows the Texas law to go into effect, which it’s slated to do Tuesday.

“Law enforcement officers in Texas are now authorized to arrest and jail any illegal immigrants crossing the border,” Abbott said, “unless the Supreme Court intervenes by March 9.”

The ruling comes two months to the day of the Biden administration suing over a bill the legislature passed last year, which Abbott signed into law in December.

The lawsuit was filed in the U.S. District Court for the Western Division of Texas Austin Division and names Abbott, the Texas Department of Public Safety and its director, Steven McCraw, as defendants.

On Thursday, the U.S. district judge ruled in favor of the Biden administration and issued a preliminary injunction blocking the bill from going into effect. The state quickly appealed to the U.S. Court of Appeals for the Fifth Circuit. On Monday, three appellate justices delivered an opinion for the entire court granting a temporary administrative stay to the district court’s ruling for seven days pending an appeal to the Supreme Court.

They also ordered the appeal to be expedited to the next available oral argument calendar and said “appellants’ opposed motion for a stay pending appeal is deferred to the oral argument merits panel that receives this case.”

The Biden administration argues SB 4 “creates purported state immigration crimes for unlawful entry and unlawful reentry, permits state judges and magistrates to order the removal of noncitizens from the country, and mandates that state officials carry out those removal orders.”

It also argued, “Texas cannot run its own immigration system,” via SB 4, which “intrude[s] on the federal government’s exclusive authority to regulate the entry and removal of noncitizens, frustrate[s] the United States’ immigration operations and proceedings, and interfere[s] with U.S. foreign relations.”

Abbott has remained steadfast that Texas has the right to self-defense and expects the case to be heard by the U.S. Supreme Court. S.B. 4’s goal is to “stop the tidal wave of illegal entry into Texas,” Abbott said. It stipulates that repeat offenders who illegally reenter Texas can face a prison sentence of up to 20 years. It also gives law enforcement the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry.

After the district court ruling, Abbott said, “we will not back down in our fight to protect our state – and our nation – from President Biden’s border crisis. The President of the United States has a constitutional duty to enforce federal laws protecting States, including laws already on the books that mandate the detention of illegal immigrants. Texas has the right to defend itself because of President Biden’s ongoing failure to fulfill his duty to protect our state from the invasion at our southern border. Even from the bench, this District Judge acknowledged that this case will ultimately be decided by the U.S. Supreme Court.”

SB 4 would go into effect on March 11 unless the Supreme Court intervenes before then.

The Supreme Court has already intervened in one federal lawsuit over Texas’ concertina wire barriers, authorizing Border Patrol agents to destroy them as the case makes its way through court. Since then, Abbott has expanded fortifications, built a military base at the border, and received support from the Texas legislature and 25 Republican governors. Border Patrol agents also haven’t destroyed any Texas barriers.

In a recently published column, Abbott repeated an argument first made by former Arizona Attorney General Mark Brnovich in a legal opinion he issued on “invasion,” supporting state’s rights to self-defense. Brnovich pointed to James Madison who “cited Virginia using its militia to stop smugglers as an example of a valid exercise of the invasion power, and there is every basis to conclude this sovereign power was retained as reflected in the State Self-Defense Clause.”

Abbott argued, “Today, Texas faces a similar but starker threat than Virginia’s smugglers, with Mexican drug cartels that operate as paramilitary forces on our border.”

Abbott also cites Article 1, Section 10, Clause 3 of the U.S. Constitution justifying Texas’ right to self-defense. Kinney, Terrell and Goliad counties first cited the clause in invasion declarations they passed on July 5, 2022. Since then, 53 counties have done so. Abbott’s reference to cartels as “paramilitary forces” was first used in Crockett and Shackelford counties’ invasion resolutions.

Abbott and 25 Republican governors argue the U.S. Constitution “is the supreme law of the land and would supersede any federal statutes to the contrary.” They will also “do the job that President Joe Biden has failed to do,” he said: continue to build barriers to deny illegal entry, arrest illegal foreign nationals, and “defend our state, and this nation, from grievous threats to our border.”