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Within hours of SCOTUS ruling on Texas border law, Fifth Circuit blocks it


(The Center Square) – Within hours of the U.S. Supreme Court ruling on Texas’ border bill, SB 4, allowing it to go into effect, the Fifth Circuit Court of Appeals reversed course. It issued two notices after the high court’s ruling, including an order reversing its March 2 ruling.

Earlier this month, after a district court issued an injunction blocking Texas’ law from going into effect, Texas appealed and the Fifth Circuit stayed the district court ruling allowing the law to go into effect pending appeal.

The Fifth Circuit Tuesday night reversed that ruling, blocking the law from going into effect.

In what some have described as “legal whiplash,” Texas cannot now implement a law that makes illegal entry into the state from a foreign nation a state crime. Nor can law enforcement transport illegal border crossers to a port of entry under the auspices of the law.

On Tuesday, the U.S. Supreme Court, in a 6-3 vote, ruled the law could go into effect on procedural grounds. The justices largely disagreed on the use and application of administrative stays and did not rule on the merits of the case. The justices took issue with the Fifth Circuit not taking any action on Texas’s motion for a stay pending appeal and sent the case back to the Fifth Circuit with instructions.

In Justices Amy Coney Barrett and Brett Kavanaugh’s concurrence, they said because the Fifth Circuit had not “yet rendered a decision on whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture.”

“Before this court intervenes on the emergency docket, the Fifth Circuit should be the first mover: It should apply the Nken factors and decide the motion for a stay pending appeal. It can presumably do so promptly. Texas’s motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5, almost two weeks ago. Merits briefing on Texas’s challenge to the district court’s injunction of SB 4 is currently under way. If a decision does not issue soon, the applicants may return to this court.”

After the high court’s ruling, the Fifth Circuit first issued a notification at 6:01 pm ET stating it had scheduled the case for oral argument on the motion to stay pending appeal on March 20 at 10 am ET via Zoom. It also gave instructions for filing oral arguments electronically.

Nearly five hours later, and less than nine hours after the Supreme Court’s ruling, at 10:44 pm ET, the Fifth Circuit issued a ruling reversing its March 2 ruling.

A panel, led by Chief Judge Priscilla Richman, including judges Andrew Oldham and Irma Ramirez, said, “A majority of the panel has concluded that the administrative stay entered by a motions panel on March 2, 2024, should be lifted.” They dissolved their March 2 administrative stay that had blocked the lower court’s injunction halting the law from going into effect.

In an unusual action, Oldham dissented with the panel’s decision, stating “A preliminary injunction is an extraordinary remedy that alters the status quo. … A stay preserves the status quo while an appellate court reviews the lawfulness of that alteration.

“Earlier today, the Supreme Court of the United States restored an administrative stay so our panel could review the State’s request for emergency relief under Federal Rule of Appellate Procedure. I would leave that stay in place pending tomorrow’s oral argument on the question.”

Oral arguments began Wednesday morning before the panel of judges to consider Texas’ motion to stay the district court’s ruling.

The question before the panel of judges is whether they should issue a stay pending appeal. Last night, the question was whether or not the administrative stay should remain in effect until they answered the first question.

Currently, the district court’s injunction remains in effect and SB 4 is on hold.

The case is scheduled to be heard on April 3 for the parties to argue the merits of the case.

It is unclear if the panel will issue a ruling before April 3. It also remains unclear if a request for the full court to hear the case would be granted.