United States v. State of Texas

Case: 24-50149 Document: 280 Page: 1 Date Filed: 07/03/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________

FILED

July 3, 2025

No. 24-50149

____________ Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

State of Texas; Greg Abbott, in his official capacity as Governor of

Texas; Texas Department of Public Safety; Freeman F.

Martin, in his official capacity as Director of Texas Department of Public

Safety,

Defendants—Appellants,

______________________________

Las Americas Immigrant Advocacy Center; American

Gateways; County of El Paso, Texas,

Plaintiffs—Appellees,

versus

Freeman F. Martin, in his official capacity as Director of the State of Texas

Department of Public Safety,

Defendant—Appellant.

Case: 24-50149 Document: 280 Page: 2 Date Filed: 07/03/2025

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC Nos. 1:23-CV-1537, 1:24-CV-8

______________________________

Before Richman, Oldham, and Ramirez, Circuit Judges.

Priscilla Richman, Circuit Judge:

The State of Texas enacted legislation known as S. B. 4 that prohibits

noncitizens from illegally entering or reentering the state and sets forth

removal procedures. The United States, as well as several other plaintiffs,

filed two separate lawsuits challenging S. B. 4, and these plaintiffs filed

motions for preliminary injunctions in each case. 1 After consolidating the

cases, 2 the district court granted a preliminary injunction, staying the

effectiveness of the new laws. 3 The defendants filed an interlocutory appeal, 4

and this court denied a motion to stay the district court’s injunction pending

appeal. 5 We now consider the merits of the appeal from the grant of the

preliminary injunction.

The United States voluntarily dismissed its complaint without

prejudice in the district court pursuant to Rule 41(a)(1)(A)(i) on March 18,

2025. 6 The United States’ appeal is now moot.

_____________________

1

See United States v. Texas, 719 F. Supp. 3d 640, 651 & n.1 (W.D. Tex. 2024).

2

ROA.1614-15.

3

Texas, 719 F. Supp. 3d at 702.

4

ROA.592-93.

5

United States v. Texas, 97 F.4th 268, 298 (5th Cir. 2024).

6

Notice of Voluntary Dismissal at 1, Texas, 719 F. Supp. 3d 640 (No. 1:24-CV-8),

Dkt. No. 79.

2

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The remaining plaintiffs are Las Americas Immigrant Advocacy

Center (Las Americas) and American Gateways (to whom we will refer

collectively as the Nonprofit Plaintiffs), and the County of El Paso, Texas.

The remaining defendants in the district court are the District Attorney for

the 34th Judicial District of Texas and Freeman F. Martin in his official

capacity as Director of the State of Texas Department of Public Safety

(DPS). (The plaintiffs sued Stephen C. McCraw in his official capacity as

Director of DPS, and Martin has since replaced McCraw as the Director. 7)

However, the District Attorney moved to dismiss his appeal in our court, 8

and we granted that motion. 9 Accordingly, the district court’s preliminary

injunction as to the claims against the District Attorney for the 34th Judicial

District of Texas remains in effect.

We affirm the district court’s order granting a preliminary injunction

as it pertains to Las Americas’s claims against Director Martin. It is therefore

unnecessary to consider matters raised in this appeal with regard to American

Gateways or El Paso County.

I

The origins of this litigation and its course through March 2024 are

set forth in our decision denying a stay pending appeal of the preliminary

injunction. 10 We will not recount that background here, except as necessary

to resolve the issues presently before us.

_____________________

7

See Fed. R. Civ. P. 25(d); Fed. R. App. P. 43(c)(2).

8

Agreed Motion to Dismiss Appeal at 2-3, Texas, 97 F.4th 268 (No. 24-50149),

Dkt. No. 244.

9

Order, Texas, 97 F.4th 268 (No. 24-50149), Dkt. No. 247-2.

10

See Texas, 97 F.4th at 272-74.

3

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In November 2023, the Texas legislature passed Senate Bill 4

(S. B. 4). 11 The bill’s preamble reflects that its purpose is to prohibit “the

illegal entry into or illegal presence in [the] state by” an alien. 12 The bill

“authoriz[es] or requir[es] under certain circumstances the removal of

persons who violate those prohibitions.” 13 S. B. 4 amended the Texas Penal

Code to include two new criminal offenses entitled “Illegal Entry from

Foreign Nation” and “Illegal Reentry by Certain Aliens.” 14 Those and other

implementing laws are the primary focus of this appeal.

The crime of “Illegal Entry from Foreign Nation” is codified at Texas

Penal Code § 51.02. The section provides: “A person who is an alien

commits an offense if the person enters or attempts to enter this state directly

from a foreign nation at any location other than a lawful port of entry.” 15 The

section also enumerates affirmative defenses, including when: (1) the federal

government has granted the defendant “lawful presence in the United

States”; (2) the federal government has granted the defendant asylum under

8 U.S.C. § 1158; (3) the defendant’s conduct does not constitute a violation

of 8 U.S.C. § 1325(a), which prohibits illegal entry into the United States;

and (4) the defendant “was approved for benefits under the federal Deferred

Action for Childhood Arrivals” program between certain dates. 16

The crime of “Illegal Reentry by Certain Aliens” is codified at Texas

Penal Code § 51.03. This section prohibits aliens from “enter[ing],

_____________________

11

S. B. 4, 88th Leg., 4th Called Sess. (Tex. 2023).

12

Id.

13

Id.

14

Id. § 2 (codified at Tex. Penal Code §§ 51.02-03).

15

Tex. Penal Code § 51.02(a).

16

Id. § 51.02(c).

4

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attempt[ing] to enter,” or being “found in” the state after the person

“(1) has been denied admission to or excluded, deported, or removed from

the United States; or (2) has departed from the United States while an order

of exclusion, deportation, or removal is outstanding.” 17 This provision does

not identify any affirmative defenses. 18

If a person violates § 51.02 or § 51.03, S. B. 4 empowers Texas state

judges and magistrates to order them to return to the foreign nation from

which they entered or attempted to enter. 19 Under Texas Code of Criminal

Procedure article 5B.002, a state judge or magistrate “may” enter such an

order if “the person agrees to the order,” among other requirements. 20

Under the same provision, the presiding judge “shall” issue the order if the

defendant is convicted of either offense. 21 Failure to comply with an article

5B.002 order is a second-degree felony, 22 punishable by a fine of up to

$10,000 and up to twenty years of imprisonment. 23

Importantly, S. B. 4 provides that a “court may not abate the

prosecution of an offense under Chapter 51 . . . on the basis that a federal

determination regarding the immigration status of the defendant is pending

or will be initiated.” 24

_____________________

17

Id. § 51.03(a).

18

See id. § 51.03.

19

S. B. 4 § 1 (codified at Tex. Code Crim. Proc. art. 5B.002).

20

Tex. Code Crim. Proc. art. 5B.002(c).

21

Id. art. 5B.002(d).

22

Tex. Penal Code § 51.04.

23

Id. § 12.33.

24

S. B. 4 § 1 (codified at Tex. Code Crim. Proc. art. 5B.003).

5

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The district court granted a preliminary injunction precluding the

enforcement of the new laws promulgated in S. B. 4. Director Martin asks us

to vacate that preliminary injunction, arguing that the plaintiffs do not have

standing to assert their claims and that, if we reach the merits of those claims,

S. B. 4 is not preempted by federal law.

We note that we are confined to the record that was before the district

court. The district court issued a preliminary injunction prior to the

November 2024 elections, and before President Trump assumed office. The

dissenting opinion hinges some of its positions on the fact that President

Trump’s policies and how his administration partners with Texas regarding

immigration issues differ markedly from former President Biden’s policies.

Again, our review is based on the evidence and record that was before the

district court.

II

The first issue we confront is standing. The district court concluded

that the Nonprofit Plaintiffs had standing. 25

In determining whether to grant a stay pending appeal, we did not

consider whether the Nonprofit Plaintiffs or El Paso County had standing to

pursue their respective claims. That was because we concluded that the

United States did have standing to pursue its claims, and that applying the

factors set forth in Nken v. Holder, 26 a stay of the preliminary injunction

should not issue. 27 It was therefore unnecessary to consider the standing of

_____________________

25

United States v. Texas, 719 F. Supp. 3d 640, 655-58 (W.D. Tex. 2024).

26

556 U.S. 418 (2009).

27

See United States v. Texas, 97 F.4th 268, 274-75 (5th Cir. 2024).

6

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the other plaintiffs. 28 Since the United States has dismissed its complaint in

the district court in its entirety, we now consider whether at least one of the

remaining plaintiffs has standing to pursue its claims against Director Martin,

the only remaining appellant.

The Supreme Court has explained that “[a]t the preliminary

injunction stage, . . . the plaintiff must make a ‘clear showing’ that she is

‘likely’ to establish each element of standing.” 29 To establish standing, “a

plaintiff must demonstrate (i) that she has suffered or likely will suffer an

injury in fact, (ii) that the injury likely was caused or will be caused by the

defendant, and (iii) that the injury likely would be redressed by the requested

judicial relief.” 30 The injury “must be actual or imminent, not speculative—

meaning that the injury must have already occurred or be likely to occur

soon.” 31 “[W]hen a plaintiff seeks prospective relief such as an injunction,

the plaintiff must establish a sufficient likelihood of future injury.” 32

_____________________

28

See, e.g., Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (“Only one of the

petitioners needs to have standing to permit us to consider the petition for review.”);

Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006) (“The Court of

Appeals did not determine whether the other plaintiffs have standing because the presence

of one party with standing is sufficient to satisfy Article III’s case-or-controversy

requirement.”).

29

Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 22 (2008)).

30

FDA v. All. for Hippocratic Med., 602 U.S. 367, 380 (2024) (first citing Summers

v. Earth Island Inst., 555 U.S. 488, 493 (2009); and then citing Lujan v. Defs. of Wildlife, 504

U.S. 555, 560-61 (1992)).

31

Id. at 381 (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).

32

Id. (citing Clapper, 568 U.S. at 401).

7

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A

Las Americas alleges that S. B. 4 will directly affect its ability to

provide legal services to immigrants. It is not suing on behalf of those who

have entered or reentered, or may enter or reenter, Texas illegally; it is not

asserting “associational standing.” 33

The Supreme Court’s decision in Havens Realty Corp. v. Coleman 34

strongly signals that Las Americas has demonstrated injury and has standing.

In Havens Realty, an organization known as HOME (Housing Opportunities

Made Equal) brought suit “in its own right” seeking damages from

defendants who were alleged to have steered potential renters who were black

away from specific properties by falsely telling them there were no

apartments available. 35 The Supreme Court observed that “HOME also

alleged injury” to itself because it “asserted that the steering practices of [a

defendant] had frustrated the organization’s counseling and referral services,

with a consequent drain on resources.” 36 The Supreme Court quoted a

passage in HOME’s complaint that described its injury:

Plaintiff HOME has been frustrated by defendants’ racial

steering practices in its efforts to assist equal access to housing

through counseling and other referral services. Plaintiff

_____________________

33

See generally OCA-Greater Hous. v. Texas, 867 F.3d 604, 610 (5th Cir. 2017)

(“‘Associational standing’ is derivative of the standing of the association’s members,

requiring that they have standing and that the interests the association seeks to protect be

germane to its purpose. By contrast, ‘organizational standing’ does not depend on the

standing of the organization’s members. The organization can establish standing in its own

name if it ‘meets the same standing test that applies to individuals.’” (footnotes omitted)

(first quoting Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006); and then

quoting Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 178 F.3d 350, 356 (5th Cir. 1999))).

34

455 U.S. 363 (1982).

35

Id. at 368, 378.

36

Id. at 369.

8

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HOME has had to devote significant resources to identify and

counteract the defendant’s [sic] racially discriminatory steering

practices. 37

The Court held that if these allegations were true, “there can be no

question that the organization has suffered injury in fact.” 38 The Court

characterized the injury as “steering practices [that] have perceptibly

impaired HOME’s ability to provide counseling and referral services for

low- and moderate-income homeseekers.” 39 The Court continued, “[s]uch

concrete and demonstrable injury to the organization’s activities—with the

consequent drain on the organization’s resources—constitutes far more than

simply a setback to the organization’s abstract social interests.” 40 We see no

daylight between Las Americas’s allegations (supported by evidence

presented during the preliminary injunction proceedings) and those in

Havens Realty regarding standing.

Implementation of S. B. 4 would cause a concrete injury to Las

Americas’s provision of legal services to immigrants. In an affidavit executed

by one of Las Americas’s directors, Las Americas averred it will “need to

train staff members to address the specific needs of those detained pursuant

to S.B. 4, and develop new materials to advise defendants of their rights and

the manner in which the state law intersects with their rights under federal

law.” 41 At a minimum, the cost of developing new materials and training

staff to facilitate representation of those detained under Texas’s new

immigration laws is an economic injury. “For standing purposes, a loss of

_____________________

37

Id. at 379 (alteration in original).

38

Id.

39

Id.

40

Id.

41

ROA.943, ¶ 35.

9

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even a small amount of money is ordinarily an ‘injury.’” 42 This economic

injury could also be labeled a “diversion of resources,” but attaching such a

label cannot transmogrify a cost. It is what it is: a cost that requires an outlay

of money.

Texas’s new immigration laws have affected or will affect Las

Americas’s provision of legal services to immigrants, its “core” activity, in

other direct and concrete ways. 43 Las Americas described in the district court

proceedings how the enactment of S. B. 4 has already caused it to expend

resources in order to provide legal counsel to immigrants seeking to deal with

the new laws’ ramifications. 44 But the prospective impact on Las Americas’s

provision of legal services is greater. If S. B. 4 is preempted by federal

statutes and regulations but goes into effect for a period of time before that

determination is made, Las Americas will have expended time and resources

in creating and implementing an entirely new operation to serve immigrants

arrested under S. B. 4 that would be irretrievably lost. 45

Its success in assisting state detainees in obtaining relief under federal

immigration laws is also likely to be significantly less than when it represents

federal detainees due to the differences under the new state immigration

laws. 46 Las Americas maintains that its “purpose will be frustrated, as S.B.

4 will subject noncitizens to rapid removal outside of federal removal

proceedings and before Las Americas can assist them in seeking the relief

_____________________

42

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 (2017).

43

Cf. FDA v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024) (“In other words,

Havens’s actions directly affected and interfered with HOME’s core business

activities.”).

44

ROA.940, ¶ 24; ROA.945, ¶¶ 44-46; ROA.946-47, ¶¶ 50-51.

45

See ROA.947, ¶ 52.

46

ROA.945-48.

10

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federal law provides.” 47 An affidavit submitted by Las Americas explains

that “reaching out when individuals are arrested [under the new Texas laws]

is critical to ensuring that they are advised as to their ability to apply for

asylum, and submit timely applications.” 48

But for the implementation of S. B. 4, the time and resources focused

on those detained under the new state immigration laws would instead be

expended representing immigrants who are contending only with the federal

system. 49 And, because Las Americas cannot serve as many immigrants

arrested and detained under S. B. 4 as it can through its existing operations

for immigrants navigating the federal system, the total number of immigrants

Las Americas can serve in obtaining asylum or other relief will be lower. 50

The evidence supporting these assertions is detailed in the record, as follows.

Las Americas is a nonprofit legal services organization based in El

Paso, Texas. 51 Las Americas has provided legal, counseling, and referral

services to immigrants for more than thirty-seven years, since 1987. 52

According to the affidavit, Las Americas seeks “to ensure that

individuals have a fair opportunity to establish their eligibility for relief from

removal from the United States, with a primary focus on ensur[ing]

individuals are not wrongfully removed to persecution or torture.” 53 It

“provide[s] immigration counseling and representation to immigrants

_____________________

47

ROA.948, ¶ 56.

48

ROA.942, ¶ 32.

49

ROA.945-48.

50

ROA.945-48.

51

ROA.935, ¶ 3.

52

ROA.937, ¶ 10.

53

ROA.935, ¶ 3.

11

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seeking asylum and those detained by the U.S. government in and around

West Texas, New Mexico, and Ciudad Juarez, Mexico, including by assisting

and representing individuals living in the community to apply affirmatively

for asylum.” 54 It also counsels “individuals facing expedited removal who

are undergoing Credible Fear Interviews (CFIs)” and “represent[s] people

subject to reinstatement of a prior removal order in Reasonable Fear

Interviews (RFIs).” 55 The affidavit further explains that “[f]or individuals

who are able to clear the CFI hurdle, [Las Americas’s] detained team helps

with subsequent stages of the immigration process when capacity allows,

including asylum applications, evidence gathering, appeals, bond and parole

requests, mental health screenings, competency evaluations, and more.” 56

“Where resources allow, [it] provide[s] these services as part of full

representation in immigration court and before the Board of Immigration

Appeals. In other cases, [it] offer[s] these services as pro se assistance. For

pro se individuals, [it] also provide[s] assistance with document preparation

and translation.” 57

The affidavit explains that until the passage of S. B. 4, “[t]he staffing

of Las Americas, and the allocation of resources, has always been designed to

provide the assistance and representation people need to seek protection

through the federal immigration system.” 58 Las Americas counsels and

_____________________

54

ROA.935, ¶ 4.

55

ROA.935-36, ¶ 4.

56

ROA.939, ¶ 18.

57

ROA.939, ¶ 18 (italics omitted).

58

ROA.940, ¶ 22.

12

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represents immigrants in CBP or ICE detention 59 and has immigrant clients

who are not in detention. 60

For those detained by ICE, Las Americas “provides know-your-

rights presentations in the ICE facilities, and then screens individuals for

further legal representational needs.” 61 Las Americas “has developed

systems to gain access to detainees, arrange for group presentations, reserve

sufficient time and space in the facility for confidential attorney-client

meetings, track the progress of detained noncitizens, and remain in contact

with clients through video conference, phone calls, and written

correspondence throughout their case.” 62

Las Americas “serves its non-detained clients through a community

representation model.” 63 Under this model, Las Americas “works with

partner organizations like shelters, churches, hospitals, and consulates to

make contact with noncitizen clients, who then come to Las Americas[’s]

offices in person for further consultation and representation.” 64 In 2023, Las

Americas “served approximately 480 people through these non-detained

services.” 65

The enactment of S. B. 4 opened an entirely new front that Las

Americas must navigate to serve its clients. S. B. 4 “creates a new state

system to regulate immigration that operates independently of the federal

_____________________

59

ROA.941, ¶ 28.

60

ROA.941, ¶ 26.

61

ROA.941, ¶ 28.

62

ROA.941, ¶ 28.

63

ROA.941, ¶ 27.

64

ROA.941, ¶ 27.

65

ROA.941, ¶ 27.

13

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system.” 66 The affidavit relates that “Las Americas does not have any

programs or provide any services to individuals in state or county jails or

prisons. S.B. 4 requires Las Americas to develop an entirely new operation

to provide immigration representation to those arrested under S.B. 4.” 67 The

impact of S. B. 4 on Las Americas’s delivery of services is direct. The

affidavit asserts, “Las Americas will have to divert its resources to create an

entirely new representation program and Know Your Rights trainings to

ensure that those detained pursuant to S.B. 4 can seek critical humanitarian

protections such as asylum.” 68 As already noted, Las Americas will “need

to train staff members to address the specific needs of those detained

pursuant to S.B. 4, and develop new materials to advise defendants of their

rights and the manner in which the state law intersects with their rights under

federal law.” 69

Las Americas avers that development of a program to serve those

arrested or detained under the new Texas laws “will require a major

investment of resources.” 70 The evidence recounted above supports a

factual finding in this regard. Las Americas will be paying its employees to

retool and to represent immigrants caught up in the newly enacted state

laws. 71

The Texas Department of Public Safety (DPS) has the authority to

arrest and detain illegal immigrants under S. B. 4. The Director intends to

_____________________

66

ROA.940, ¶ 23.

67

ROA.942, ¶ 30.

68

ROA.947, ¶ 54.

69

ROA.943, ¶ 35.

70

ROA.942, ¶ 34.

71

See ROA.938, ¶ 16; ROA.942, ¶ 30; ROA.942-43, ¶¶ 34-35.

14

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authorize DPS to exercise that authority. 72 Las Americas’s director said in

her affidavit that

[e]ven if the removal provisions of S.B. 4 did not exist, the law

would still negatively [sic] Las Americas’ resources, as arrests

and detention under the law will continue to negatively impact

people’s ability to apply for asylum and other forms of lawful

immigration status and make representing our clients more

difficult and time-consuming. 73

She related, “For example, even without S.B. 4’s removal provisions, our

legal staff would still need to decide asylum sooner than they would have

previously for some of our clients to protect their right to seek asylum

because of the risks of arrest and detention under S.B. 4.” 74 She explained,

“We will still have to develop an S.B. 4 specific program to screen, assist and

represent those detained under S.B. 4 to ensure they can meet the one year

deadline to affirmatively [sic] for asylum.” 75

Las Americas avers that it must prioritize its numerous goals and

services, and that its primary goal is “to serve as many asylum seekers as

possible with [its] limited resources while focusing [its] efforts on ensuring

that those noncitizens at the greatest danger from removal are able to access

protection.” 76 To that end, it “focus[es] on assistance to those facing

summary removal in expedited removal proceedings.” 77 In the past, Las

_____________________

72

ROA.314-15, ¶¶ 3-9; ROA.959-60, ¶ 10.

73

ROA.947, ¶ 52.

74

ROA.947, ¶ 52.

75

ROA.947, ¶ 52.

76

ROA.937, ¶ 12.

77

ROA.937, ¶ 13.

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Americas has “shifted [its] priorities . . . to meet this goal in response to

changes in federal policies.” 78 The affidavit avers that

We are one of the only organizations providing pro bono

representation to immigrants, asylum seekers, and other

persons migrating or in removal proceedings in the West

Texas, New Mexico, and Ciudad Juarez area. For this reason,

we have consistently focused our efforts on the most vulnerable

to removal, such as asylum seekers and the victims of crime,

and those whom the private bar may be less able or willing to

represent. 79

The affidavit states that “[r]esponding to S.B. 4 through changes to our

programs is a necessary part of and consistent with our programmatic

mission.” 80

Las Americas’s director of legal services at its immigrant advocacy

center said in her affidavit that S. B. 4 “has already forced us to divert our

limited resources.” 81 The organization has “received questions from

community members about S.B. 4—whether and when interaction with state

law enforcement will result in questioning about form of entry into the United

States and, thus, arrest and removal from the United States.” 82 Las

Americas has “received questions about the potential for noncitizen parents

of U.S. citizen children being arrested and removed because of interaction

_____________________

78

ROA.937, ¶ 13.

79

ROA.938, ¶ 14.

80

ROA.938, ¶ 14.

81

ROA.940, ¶ 24.

82

ROA.945, ¶ 46.

16

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with state officers; the interaction between S.B. 4 and federal removal

proceedings; and the impact of S.B. 4 on the ability to seek asylum.” 83

There are also geographic and institutional considerations. Legal

service providers would have to contend with the fact that their clients or

those they seek to represent would be arrested by federal officers and

detained in federal facilities, while state officers would independently

conduct arrests and detain at least some, if not many, immigrants in state or

county facilities. 84

The Las Americas affidavit averred, “These changes in Las

Americas’ services will necessarily require diverting funding and staff time

from community-based representation programs, and decrease the number

of people Las Americas can serve.” 85 That is a reasonable deduction, and

the district court’s factual findings in this regard are not clearly erroneous.

Las Americas has identified and described impacts S. B. 4 would have

on its operations that are far more detailed and at least as impactful as those

the Supreme Court held to have established injury to an organization in

Havens Realty Corp. 86 The Supreme Court’s more recent decision in FDA v.

Alliance for Hippocratic Medicine 87 reinforces, rather than undermines, our

conclusion that Las Americas has likely established standing. The Alliance

for Hippocratic Medicine decision addressed Havens Realty Corp. It is also

_____________________

83

ROA.946, ¶ 50.

84

ROA.314-15, ¶¶ 3-4.

85

ROA.948, ¶ 55.

86

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

87

602 U.S. 367 (2024).

17

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apparent that the factual circumstances in the case before us and those in

Alliance for Hippocratic Medicine are not comparable.

In Alliance for Hippocratic Medicine, “pro-life medical associations, as

well as several individual doctors,” sued the Food and Drug Administration

(FDA) over its approval of mifepristone, an abortion drug. 88 None of the

plaintiffs used or prescribed the drug. 89 Instead, “the plaintiffs want[ed]

FDA to make mifepristone more difficult for other doctors to prescribe and

for pregnant women to obtain.” 90 The Court thoroughly dissected the

individual physicians’ claims and readily concluded they did not have

standing. 91 We will not dwell on that analysis, though it is certainly not

irrelevant. The most salient analysis is that of the organizations’ standing.

In analyzing how an organization could establish its own injury for

standing purposes, the Supreme Court contrasted the organizational

plaintiffs’ alleged injuries in Havens Realty with those of the organizational

plaintiffs in Alliance for Hippocratic Medicine. 92 The organizational plaintiffs

in the latter case asserted that when the FDA relaxed regulation of the

abortion drug mifepristone, that “‘forced’ the associations to ‘expend

considerable time, energy, and resources’ drafting citizen petitions to FDA,

as well as engaging in public advocacy and public education.” 93 In explaining

why the organizational plaintiffs had not established an injury for purposes of

standing, the Court explicated its holding in Havens Realty. The Court said,

_____________________

88

Id. at 376-77.

89

Id. at 374.

90

Id.

91

Id. at 386-93.

92

Id. at 395.

93

Id. at 394.

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“Critically, HOME [(an organizational plaintiff)] not only was an issue-

advocacy organization, but also operated a housing counseling service.” 94 In

the case before us, Las Americas is not only an issue-advocacy organization—

it operates to provide legal services and legal counseling to low-income

immigrants. The Supreme Court further explained its holding in Havens

Realty, saying, “[W]hen Havens [(a defendant)] gave HOME’s employees

false information about apartment availability, HOME sued Havens because

Havens ‘perceptibly impaired HOME’s ability to provide counseling and

referral services for low- and moderate-income homeseekers.’” 95

In the present case, Las Americas contends that the State of Texas has

enacted immigration laws that are preempted by federal statutes and

regulations, and those state laws would perceptibly impair its ability to

provide counseling and referral services for low- and moderate-income

immigrant clients. The state laws differ in significant respects from federal

laws and were intended to permit the state to apprehend and arrest large

numbers of immigrants that the federal government had not apprehended or

would not apprehend. The state laws would also expedite the processing of

immigrants, which would have the impact of limiting or in some cases

eliminating the opportunity or time to seek admittance under numerous

federal laws. 96 The new state laws specifically provide that a “court may not

abate the prosecution of an offense under Chapter 51 . . . on the basis that a

federal determination regarding the immigration status of the defendant is

pending or will be initiated.” 97

_____________________

94

Id. at 395.

95

Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).

96

See infra pp. 64-65, 77-80, 83-88.

97

Tex. Code Crim. Proc. art. 5B.003.

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In Alliance for Hippocratic Medicine, the Supreme Court explained its

holding in Havens Realty, saying “[i]n other words, Havens’s actions directly

affected and interfered with HOME’s core business activities—not

dissimilar to a retailer who sues a manufacturer for selling defective goods to

the retailer.” 98 Las Americas’s core activity is providing legal representation

and legal counseling to low-income immigrants, prioritizing reaching

immigrants in time to assist them in asserting asylum or other claims under

federal immigration laws. 99 The state laws at issue directly interfere with that

activity. Las Americas is not “dissimilar to a retailer who sues a

manufacturer for selling defective goods to the retailer.” 100 Texas has

manufactured new laws that, if preempted, would unlawfully interfere with

the federal immigration process that immigrants navigate. Las Americas

provides legal services and counseling to immigrants who are affected by the

new state laws, much like the “retailer” analogy in Alliance for Hippocratic

Medicine. The state laws add a new, separate, independent, state immigration

regime to which those whom Las Americas serves would be wrongfully

subjected if the new state laws are preempted. Just as the defendants’ “false

information about apartment availability” in Havens “perceptibly impaired

[the non-regulated organizational plaintiff’s] ability to provide counseling

and referral services for low- and moderate-income homeseekers,” 101 the

Texas laws at issue would increase the need for legal services and counseling,

and decrease the overall number of low- and moderate-income immigrants

Las Americas could successfully assist in asserting asylum and other federal

_____________________

98

All. for Hippocratic Med., 602 U.S. at 395.

99

ROA.945-48.

100

All. for Hippocratic Med., 602 U.S. at 395.

101

Id. (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).

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immigration claims. 102 Las Americas has shown “far more than simply a

setback to the organization’s abstract social interests.” 103

The dissenting opinion attempts to distinguish Havens Realty as well

as the Supreme Court’s discussion of Havens Realty in Alliance for Hippocratic

Medicine. First, the dissenting opinion says, in Havens Realty, there was “an

action by the defendant against the plaintiff ‘directly,’” which was “a lie told

by the defendant to the plaintiff.” 104 The dissenting opinion then asserts,

“So, as Alliance for Hippocratic Medicine emphasized, HOME’s theory of

standing was just like that of ‘a retailer who sues a manufacturer for selling

[it] defective goods.’” 105 With great respect, we disagree with the dissenting

opinion’s characterization. The defendant in Havens Realty falsely told an

employee of HOME that there were no apartments for rent. Neither the

employee nor HOME was actually interested in renting an apartment. They

were attempting to determine if the defendant was illegally “steering”

people away from its properties based on race. 106 The direct injury to

HOME was that the lie, i.e. illegal steering, made it more difficult for those

whom HOME counseled and provided services to obtain housing. The

Supreme Court made this clear in Alliance for Hippocratic Medicine in saying

“when Havens gave HOME’s employees false information about apartment

availability, HOME sued Havens because Havens ‘perceptibly impaired

_____________________

102

ROA.945-48.

103

All. for Hippocratic Med., 602 U.S. at 394 (quoting Havens Realty, 455 U.S. at

379).

104

Post at 108.

105

Post at 108 (alteration in original) (quoting All. for Hippocratic Med., 602 U.S. at

395).

106

Havens Realty, 455 U.S. at 373 (“In the present context, ʻtesters’ are individuals

who, without an intent to rent or purchase a home or apartment, pose as renters or

purchasers for the purpose of collecting evidence of unlawful steering practices.”).

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HOME’s ability to provide counseling and referral services for low- and

moderate-income homeseekers.’” 107

That is no different from the injury in the present case. When Texas

enacted new laws to regulate entry and removal of aliens, it represented

directly not only to immigrants, but the plaintiffs in this case, and indeed the

public, that it has the lawful authority to do so. The former Director of DPS

publicly testified—representing to immigrants, Las Americas, and the

public—that he intended to enforce the state entry and removal laws based

on his authority as the Director of DPS. 108 Again, the representations that

the DPS, acting under the direction of the Director, has such authority are

false if the laws are preempted. As part of its core activities, Las Americas

intends to represent at least some asylum seekers or seekers of other federal

immigration rights who would be arrested or detained by the new Texas laws.

Las Americas is in the same position as HOME. HOME’s standing was not

precluded by “voluntarily” 109 representing homeseekers, any more than Las

Americas should be precluded from “voluntarily” providing pro bono legal

services to immigrants. The Supreme Court did not deem the “voluntary”

provision of counseling and services to low- and moderate-income clients as

disqualifying from a standing perspective. To the contrary, the Court

deemed it as part of the core business purpose of the organization.

The dissenting opinion states that the Supreme Court in Clapper 110

explained that “‘self-inflicted’ injuries cannot ground Article III

_____________________

107

All. for Hippocratic Med., 602 U.S. at 395 (quoting Havens Realty, 455 U.S. at

379).

108

See ROA.959-60, ¶ 10 & n.1.

109

See post at 108.

110

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).

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standing.” 111 However, the Supreme Court explained in Clapper that self-

inflicted injuries are not a basis for Article III standing specifically when a

plaintiff has made expenditures based on a feared future occurrence that is

not “certainly impending.” 112 By contrast, here, the harm is certainly

impending.

The homeseekers in Havens Realty and immigrants in the present case

are essentially consumers for purposes of the analogy in Alliance for

Hippocratic Medicine. HOME was a retailer in the sense that it counseled

homeseekers, while Las Americas is a retailer in the sense that it counsels

immigrants in seeking to assert rights under federal immigration laws. The

manufacturer in Havens Realty was the illegally steering defendant. The

manufacturer in the present case is Director Martin, who would undertake to

enforce preempted state laws to arrest and remove immigrants on a rapid

basis without the opportunity to assert federal rights. Again, the state law is

clear about this,113 as is affidavit evidence. 114

Although Havens Realty “was an unusual case,” and the Supreme

Court “has been careful not to extend the Havens holding beyond its

_____________________

111

Post at 108.

112

Clapper, 568 U.S. at 416 (“Respondents’ contention that they have standing

because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—

because the harm respondents seek to avoid is not certainly impending. In other words,

respondents cannot manufacture standing merely by inflicting harm on themselves based

on their fears of hypothetical future harm that is not certainly impending. Any ongoing

injuries that respondents are suffering are not fairly traceable to [the statute].” (citations

omitted)).

113

See Tex. Penal Code § 51.02(a); Tex. Code Crim. Proc. art. 5B.002.

114

See ROA.315-16, ¶¶ 5, 9, 15.

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context,” 115 it is not a dead letter, as Alliance for Hippocratic Medicine

confirms.

B

A plaintiff must show that “the injury likely was caused or will be

caused by the defendant.” 116 The Supreme Court observed in Alliance for

Hippocratic Medicine that when “a plaintiff challenges the government’s

‘unlawful regulation (or lack of regulation) of someone else,’ ʻstanding is not

precluded, but it is ordinarily substantially more difficult to establish.’” 117

“When the plaintiff is an unregulated party, causation ‘ordinarily hinge[s] on

the response of the regulated (or regulable) third party to the government

action or inaction—and perhaps on the response of others as well.’” 118 “Yet

the Court has said that plaintiffs attempting to show causation generally

cannot ‘rely on speculation about the unfettered choices made by

independent actors not before the courts.’” 119 “[T]o thread the causation

needle in those circumstances, the plaintiff must show that the ‘third parties

will likely react in predictable ways’ that in turn will likely injure the

plaintiffs.” 120 “The causation requirement precludes speculative links—

_____________________

115

FDA v. All. for Hippocratic Med., 602 U.S. 367, 396 (2024).

116

Id. at 380.

117

Id. at 382 (alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555,

562 (1992)).

118

Id. at 383 (alteration in original) (quoting Lujan, 504 U.S. at 562).

119

Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415 n.5 (2013)).

120

Id. (quoting California v. Texas, 593 U.S. 659, 675 (2021)).

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that is, where it is not sufficiently predictable how third parties would react

to government action.” 121

In discussing “alleged future injuries to unregulated parties from

government regulation,” the Supreme Court explained that “the causation

requirement and the imminence element of the injury in fact requirement can

overlap.” 122 That is because “[b]oth target the same issue: Is it likely that

the government’s regulation or lack of regulation of someone else will cause

a concrete and particularized injury in fact to the unregulated plaintiff?” 123

Texas has enacted new laws that regulate immigrants. Those

immigrants are “third parties” or “someone else” for the purposes of the

standing analysis as explained in Alliance for Hippocratic Medicine. There is a

long history in Texas of immigrants illegally entering, reentering, and

remaining in the state. It is entirely predictable, if not virtually certain, that

there will be illegal immigrants in Texas in significant numbers that would be

covered by the new laws. In other words, large numbers of illegal immigrants

will not be motivated to exit the state or refrain from entering or reentering

because of the enactment of the new state laws.

Then-Director McCraw predicted that DPS would arrest large

numbers of illegal immigrants under the new laws. Director McCraw

testified before the Texas Senate Committee on Border Security that he

estimated immigration enforcement like that required under S. B. 4 may lead

_____________________

121

Id. (first citing Allen v. Wright, 468 U.S. 737, 757-59 (1984); and then citing

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41-46 (1976)).

122

Id. at 385 n.2.

123

Id.

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to an additional 75,000 to 80,000 arrests per year in Texas. 124 It is highly

unlikely Director McCraw would have testified under oath that his estimate

is 75,000 to 80,000 additional arrests or detentions per year if he instead

thought there might be zero or some relatively small number of arrests.

Given the number of illegal immigrants who reside in the El Paso area or

illegally enter or reenter in that vicinity, it is reasonably predicable, if not

highly probable, that arrests would be made by DPS in the El Paso area at the

direction or under the leadership of the Director.

This is congruent with the Declaration of Victor Escalon, the Regional

Director for DPS, submitted in the district court proceedings. 125 He averred

that “DPS has responsibility to enforce the criminal laws of the State of

Texas” and that he is “personally familiar with the strategy DPS plans to

deploy to enforce Texas’s recently enacted law, SB 4.” 126 He explained that

“DPS will prioritize enforcement of SB 4 in counties that are close to

facilities operated by TDCJ and the State. DPS expects to house and

process aliens detained under SB 4 primarily in State-owned facilities.” 127

There is a state detention facility in El Paso, the Rogelio Sanchez State Jail,

that has the capacity for 1,100 inmates. 128

_____________________

124

ROA.959-60, ¶ 10 & n.1 (citing Texas Senate Committee on Border Security, at

49:19-50:45 (Nov. 1, 2023), https://senate.texas.gov/videoplayer.php?vid=18888&

lang=en) (statement of Steve McCraw, Director, Tex. Dep’t of Pub. Safety)).

125

ROA.314-16.

126

ROA.314, ¶ 3.

127

ROA.315, ¶ 4.

128

See Sanchez (RZ), Tex. Dep’t of Crim. Just., https://www.

tdcj.texas.gov/unit_directory/rz.html [https://perma.cc/86QF-BAUN] (last visited July

3, 2025).

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As already discussed, the fact that state detainees would be housed in

facilities separate from federal detainees would add to the difficulties Las

Americas would face in representing state detainees in addition to those it

represents who are housed in federal facilities. 129 The difficulty is not only a

geographic one. As noted, Las Americas would have to establish new

contacts and procedures to coordinate with completely separate state

personnel. 130

In considering the requirement of causation in Alliance for Hippocratic

Medicine, the Supreme Court also explained that “an organization that has

not suffered a concrete injury caused by a defendant’s action cannot spend

its way into standing simply by expending money to gather information and

advocate against the defendant’s action. An organization cannot

manufacture its own standing in that way.” 131 The medical associations in

that case had argued “that FDA has ‘caused’ the associations to conduct

their own studies on mifepristone so that the associations can better inform

their members and the public about mifepristone’s risks.” 132 The Supreme

Court held this did not suffice to establish causation of an injury for standing

purposes. 133 The Court also explained that standing is not demonstrated just

because “an organization diverts its resources in response to a defendant’s

actions.” 134 In contrasting what would establish causation of injury, the

_____________________

129

ROA.941-43.

130

ROA.943-44.

131

FDA v. All. for Hippocratic Med., 602 U.S. 367, 394 (2024).

132

Id.

133

See id.

134

Id. at 395.

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Supreme Court again pointed to its decision in Havens Realty. 135 The Court

said, “Critically, HOME not only was an issue-advocacy organization, but

also operated a housing counseling service.” 136

Las Americas provides legal services to immigrants. That is its core

operation. Its “staff consists of 15 people, including attorneys, accredited

representatives, and paralegals. Two additional staff work in Mexico.” 137 Its

total budget in the fiscal year ending 2023 was approximately $1.4 million. 138

The fact that Las Americas also advocates regarding immigration issues does

not negate the fact that its core operation will be injured by the enforcement

of S. B. 4. As discussed earlier, it gives priority to immigrants who face

imminent removal and are at risk of losing asylum or other relief under federal

immigration laws. 139

Las Americas has demonstrated that it is likely to suffer injury caused

by the Director enforcement of the new laws enacted under S. B. 4.

C

Las Americas has also shown that the injury likely would be redressed

by the requested judicial relief. It seeks, and the district court granted, a

preliminary injunction against Director Martin, enjoining him from enforcing

Texas’s new immigration laws.

_____________________

135

Id. (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)).

136

Id. (citing Havens Realty, 455 U.S. at 368).

137

ROA.938, ¶ 16.

138

ROA.938, ¶ 15.

139

See ROA.937-38, ¶¶ 12-14.

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DPS, under Director Martin’s leadership, would be the primary arm

of the state making arrests under S. B. 4. 140 The state defendants submitted

a declaration (the Banks declaration) in the district court that said:

SB 4 will provide law enforcement in Texas, primarily DPS,

with important new tools to combat the massive influx of illegal

migration and help stem the tide of illegal migration into Texas.

When SB 4 is in effect, it will become a highly effective

component of [Operation Lone Star’s] ongoing efforts to

combat the crisis at Texas’s southern border. 141

The Banks declaration explained that Operation Lone Star “utilizes

multiple state and local agencies, including the DPS, TMD [Texas Military

Department], TFC [Texas Facilities Commission], 142 and others to stem the

flow of unlawful immigration.” 143 However, as discussed above, it is DPS,

led by Director Martin, who will prioritize where to concentrate its arrest

efforts. 144 The Escalon declaration says that DPS intends to “prioritize

enforcement of SB 4 in counties that are close to facilities operated by TDCJ

and the State.” 145 Such a facility exists in El Paso.

It is unlikely that the state will rely on the District Attorney who serves

the El Paso area to take the lead, or virtually any role, in making arrests under

the new state immigration laws. That is because the District Attorney is a

_____________________

140

ROA.288, ¶ 35 (Declaration of Michael Banks, Deputy Director, Border Czar,

Office of Texas Governor Greg Abbott).

141

ROA.288, ¶ 35.

142

ROA.282, ¶ 9.

143

ROA.286, ¶ 27.

144

See ROA.315, ¶ 4 (Declaration of Victor Escalon, Regional Director, Texas

Department of Public Safety).

145

ROA.315, ¶ 4.

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defendant in this litigation, and he was enjoined from enforcing the new

immigration laws by the district court. Though he initially appealed, he

dismissed that appeal. He remains subject to the injunction. It appears that

he will not seek to uphold the constitutionality of the new laws or enforce

them.

* * *

Las Americas has likely established each element of standing.

III

Director Martin is represented by the same counsel as the State of

Texas and other state defendants. The Director did not file a separate brief.

We considered the arguments raised in that briefing in our decision denying

a stay of the preliminary injunction. 146 Director Martin is the only remaining

appellant.

Before we reach the merits, we consider a second jurisdictional issue.

In the district court, the Director suggested that this case presents a

nonjusticiable political question. 147 The Director likewise gestures toward

that argument before our court. Regardless of whether that sufficed to

preserve the issue, 148 the political question doctrine is a “jurisdictional

limitation[] imposed upon federal courts by the ‘case or controversy’

requirement of Art. III.” 149 “Unlike most arguments, challenges to subject-

_____________________

146

See generally United States v. Texas, 97 F.4th 268 (5th Cir. 2024).

147

ROA.236.

148

See Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021) (explaining

that a party can forfeit an argument “by failing to adequately brief the argument on

appeal”).

149

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974); see also

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“The doctrines of mootness,

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matter jurisdiction” must be considered by courts “sua sponte.” 150

Accordingly, we consider whether this case presents a nonjusticiable political

question.

“Chief Justice Marshall famously wrote that it is ‘the

province and duty of the judicial department to say what the law is.’” 151

“Sometimes, however, ‘the law is that the judicial department has no

business entertaining the claim of unlawfulness—because the question is

entrusted to one of the political branches or involves no judicially enforceable

rights.’” 152 “In such a case the claim is said to present a ‘political question’

and to be nonjusticiable—outside the courts’ competence and therefore

beyond the courts’ jurisdiction.” 153 A controversy involves a nonjusticiable

political question “where there is ‘a textually demonstrable constitutional

commitment of the issue to a coordinate political department; or a lack of

judicially discoverable and manageable standards for resolving it.’” 154

As discussed further below, Director Martin contends that S. B. 4 is a

lawful exercise of the authority of the state of Texas under Article I, § 10 of

_____________________

ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’

language, no less than standing does.”); Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir.

2008) (“[T]he political question doctrine implicates the district court’s jurisdiction.”).

150

Fort Bend County v. Davis, 587 U.S. 541, 548 (2019) (italics omitted).

151

Rucho v. Common Cause, 588 U.S. 684, 695 (2019) (quoting Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803)).

152

Id. at 695-96 (quoting Vieth v. Jubelirer, 541 U.S. 267, 277 (2004) (plurality

opinion)).

153

Id. at 696 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).

154

Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker, 369 U.S. at

217).

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the Constitution. The relevant portion of that provision, the State War

Clause, provides:

No State shall, without the Consent of Congress, lay any Duty

of Tonnage, keep Troops, or Ships of War in time of Peace,

enter into any Agreement or Compact with another State, or

with a foreign Power, or engage in War, unless actually

invaded, or in such imminent Danger as will not admit of

delay. 155

There is some caselaw supporting the proposition that whether Texas has

been “actually invaded” or is “in such imminent Danger as will not admit of

delay” is nonjusticiable. 156 The Supreme Court has recognized that the

Texas Governor “is appropriately vested with the discretion to determine

whether an exigency requiring military aid for that purpose has arisen,” and

that the Governor’s “decision to that effect is conclusive.” 157

Still, the Supreme Court’s cases make clear that we have jurisdiction

to resolve this dispute. For example, in Zivotofsky ex rel. Zivotofsky v.

Clinton, 158 the Court explained that evaluating the constitutionality of

statutes is firmly within the bailiwick of the judiciary, even if an unreviewable

_____________________

155

U.S. Const. art. I, § 10, cl. 3.

156

See, e.g., California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) (holding

that a claim there has been an invasion within the meaning of Article IV, § 4 “implicates

foreign policy concerns which have been constitutionally committed to the political

branches”); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995) (“[W]e conclude

that whether the level of illegal immigration is an ‘invasion’ of Florida [within the meaning

of Article IV, § 4] and whether this level violates the guarantee of a republican form of

government present nonjusticiable political questions.”); see also Padavan v. United States,

82 F.3d 23, 28 (2d Cir. 1996) (holding, in the alternative, that a claim that the United States

failed to protect a state from an invasion within the meaning of Article IV, § 4 is

nonjusticiable).

157

Sterling v. Constantin, 287 U.S. 378, 399 (1932).

158

566 U.S. 189 (2012).

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political determination exists somewhere in the case. 159 In Zivotofsky, a

federal statute required that certain official documents for U.S. citizens born

in Jerusalem record the place of birth as Israel. 160 But the State Department

refused to specify “Israel” on a U.S. citizen’s official documents that

reflected Jerusalem as his place of birth. 161 The district court and the D.C.

Circuit held that the resulting case presented a nonjusticiable political

question. 162 The Supreme Court reversed. 163 The Court explained:

The federal courts are not being asked to supplant a foreign

policy decision of the political branches with the courts’ own

unmoored determination of what United States policy toward

Jerusalem should be. Instead, Zivotofsky requests that the

courts enforce a specific statutory right. To resolve his claim,

the Judiciary must decide if Zivotofsky’s interpretation of the

statute is correct, and whether the statute is constitutional.

This is a familiar judicial exercise. 164

The Court sketched the relevant constitutional inquiry:

In this case, determining the constitutionality of [the statute]

involves deciding whether [it] impermissibly intrudes upon

Presidential powers under the Constitution. If so, the law must

be invalidated and Zivotofsky’s case should be dismissed for

failure to state a claim. If, on the other hand, the statute does

not trench on the President’s powers, then the Secretary must

_____________________

159

See also Baker, 369 U.S. at 215 n.43 (discussing Cherokee Nation v. Georgia, 30

U.S. (5 Pet.) 1 (1831), as “a noteworthy example of the limited and precise impact of a

political question” when the case otherwise came in a justiciable form).

160

Zivotofsky, 566 U.S. at 191.

161

Id. at 192-93.

162

Id. at 193-94.

163

Id. at 194.

164

Id. at 196.

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be ordered to issue Zivotofsky a passport that complies with

[the statute]. Either way, the political question doctrine is not

implicated. 165

Our task in this case involves a similarly familiar judicial exercise. Las

Americas claims that S. B. 4 may not be constitutionally enforced because it

is preempted by federal law. One of the reasons Director Martin contends

that S. B. 4 may lawfully be enforced is because the statute is authorized

under the State War Clause. Examining “the textual, structural, and

historical evidence put forward by the parties regarding the nature of” the

relevant powers “is what courts do.” 166

The military aspect of the State War Clause power relied upon by the

Director does not disrupt this usual order. In Sterling v. Constantin, 167 the

Supreme Court reviewed an injunction against the Governor of Texas, which

enjoined him from limiting oil production despite the Governor having done

so to prevent insurrection. 168 The Governor had issued a proclamation

stating that certain Texas counties were in a state of insurrection, and he

directed the Texas National Guard to limit production of oil in those

counties. 169 Oil-leasehold owners sued, alleging, among other things,

violations of the Due Process Clause. 170 The Governor argued that the

judiciary “was powerless thus to intervene, and that the Governor’s order

had the quality of a supreme and unchallengeable edict, overriding all

_____________________

165

Id.

166

Id. at 201.

167

287 U.S. 378 (1932).

168

Id. at 387-90.

169

Id. at 387-88.

170

Id. at 387.

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conflicting rights of property and unreviewable through the judicial power of

the federal government.” 171 The Supreme Court disagreed, explaining:

If this extreme position could be deemed to be well taken, it is

manifest that the fiat of a state Governor, and not the

Constitution of the United States, would be the supreme law of

the land; that the restrictions of the Federal Constitution upon

the exercise of state power would be but impotent phrases, the

futility of which the state may at any time disclose by the simple

process of transferring powers of legislation to the Governor to

be exercised by him, beyond control, upon his assertion of

necessity. 172

Instead, the Court said, a state’s wide discretion during times of military

exigency does not mean “that every sort of action the Governor may take, no

matter how unjustified by the exigency or subversive of private right and the

jurisdiction of the courts, otherwise available, is conclusively supported by

mere executive fiat.” 173 The Court remarked that it was “well established”

that “the allowable limits of military discretion, and whether or not they have

been overstepped in a particular case, are judicial questions.” 174

Accordingly, we see no reason to conclude that this case is

nonjusticiable. This case calls us to evaluate the claim that S. B. 4 is

unenforceable under the Supremacy Clause and also to consider Director

Martin’s contrary invocation of the State War Clause. These questions of

constitutional interpretation are “a familiar judicial exercise.” 175

_____________________

171

Id. at 397.

172

Id. at 397-98.

173

Id. at 400.

174

Id. at 401.

175

See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012).

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IV

We come to the merits of this appeal. “A preliminary injunction is an

extraordinary remedy never awarded as of right.” 176 A party seeking a

preliminary injunction “must establish [1] that he is likely to succeed on the

merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that

an injunction is in the public interest.” 177 In deciding whether to issue such

relief, “courts ‘must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the

requested relief.’” 178 “The purpose of such interim equitable relief is not to

conclusively determine the rights of the parties, but to balance the equities as

the litigation moves forward.” 179

We review the district court’s grant of a preliminary injunction for

abuse of discretion. 180 A district court abuses its discretion when it bases its

decision on errors of law or clearly erroneous factual determinations. 181 We

review conclusions of law de novo and findings of fact for clear error. 182

_____________________

176

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf v.

Geren, 553 U.S. 674, 689-90 (2008)).

177

Id. at 20.

178

Id. at 24 (quoting Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987)).

179

Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017) (per curiam)

(citation omitted) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

180

See Benisek v. Lamone, 585 U.S. 155, 158 (2018) (per curiam); see also Planned

Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman, 981

F.3d 347, 354 (5th Cir. 2020) (en banc).

181

See Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d 692, 696 (5th

Cir. 2018).

182

See Kauffman, 981 F.3d at 354.

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V

The first question is the likelihood of success on the merits. Our

discussion proceeds in four parts. First, we consider whether the Eleventh

Amendment bars Las Americas’s claims against Director Martin and

whether Las Americas has a cause of action to pursue its challenge. Second,

we discuss the scope of the facial challenge inquiry. Third, we analyze

whether federal law likely preempts S. B. 4. Fourth, we assess Director

Martin’s argument that S. B. 4’s application to transnational cartel members

is a constitutionally authorized response to an “invasion.”

A

1

Director Martin asserts that Las Americas’s claims are barred by

sovereign immunity. It maintains that the claims do not come within the Ex

parte Young 183 exception to sovereign immunity.

“As an exception to the general rule of state sovereign immunity, Ex

parte Young permits plaintiffs to sue a state officer in his official capacity for

an injunction to stop ongoing violations of federal law.” 184 “The officer sued

must have ‘some connection with the enforcement of the [challenged]

act.’” 185 The required “connection,” our circuit has recognized, can be

_____________________

183

209 U.S. 123 (1908).

184

Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770, 785 (5th Cir. 2024)

(quoting Lewis v. Scott, 28 F.4th 659, 663 (5th Cir. 2022)).

185

Id. (alteration in original) (quoting Lewis, 28 F.4th at 663).

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difficult to articulate. 186 Regardless, several “guideposts” aid our analysis.187

“[T]he official must have ‘the particular duty to enforce the statute in

question and a demonstrated willingness to exercise that duty.’” 188 “A

history of prior enforcement is not required, especially in the pre-

enforcement context that applies here.” 189 “Nevertheless,” Las Americas

“must allege some action taken by [Director Martin] to show a demonstrated

willingness to enforce.” 190 Additionally, an official “must have more than

‘the general duty to see that the laws of the state are implemented.’” 191

Furthermore, an official must be able to “compel or constrain” obeyance of

the challenged law. 192

_____________________

186

See Healthy Vision Ass’n v. Abbott, 138 F.4th 385, 396 (5th Cir. 2025) (“[O]ur

decisions are not a model of clarity on what constitutes a sufficient connection to

enforcement.” (alteration in original) (quoting Mi Familia Vota v. Ogg, 105 F.4th 313, 325

(5th Cir. 2024))); Lewis, 28 F.4th at 663 (“[O]ur circuit has struggled to define this

‘connection’ requirement . . . .”); Tex. All. for Retired Ams. v. Scott (TARA), 28 F.4th 669,

672 (5th Cir. 2022) (“How much of a ‘connection’ has been hard to pin down, though.”);

Tex. Democratic Party v. Abbott (TDP II), 978 F.3d 168, 179 (5th Cir. 2020) (“This circuit

has not spoken with conviction about all relevant details of the ‘connection’

requirement.”).

187

TARA, 28 F.4th at 672.

188

Id. (quoting TDP II, 978 F.3d at 179).

189

Mi Familia Vota, 105 F.4th at 330 (citing Calhoun v. Collier, 78 F.4th 846, 851

(5th Cir. 2023)).

190

Id. (citing Tex. Democratic Party v. Abbott (TDP I), 961 F.3d 389, 401 (5th Cir.

2020)).

191

TARA, 28 F.4th at 672 (quoting City of Austin v. Paxton, 943 F.3d 993, 999-1000

(5th Cir. 2019)).

192

Id. (“‘[E]nforcement’ means ‘compulsion or constraint.’ If the official does not

compel or constrain anyone to obey the challenged law, enjoining that official could not

stop any ongoing constitutional violation.” (citation omitted) (quoting City of Austin, 943

F.3d at 1000)).

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These requirements are met as to Director Martin as the Director of

DPS. We recently held that the DPS Director has “more than just the

general duty to see that the state’s laws are implemented—[he is] directly

responsible for enforcing Texas’s criminal laws.” 193 Moreover, we stated

DPS officers “arrest people for violating Texas law, exercising ‘compulsion

or constraint’ in service of the law.” 194 Finally, there is direct evidence from

state officials that DPS, under the direction of the Director, will make arrests

and detain immigrants to enforce Texas’s new immigration laws. 195 As

already noted, then-Director McCraw himself testified before a Texas

legislative committee that S. B. 4 may lead to an additional 75,000 to 80,000

arrests per year in Texas. 196 Accordingly, the Director has demonstrated a

willingness to enforce the new immigration laws and is not entitled to

sovereign immunity.

The Supreme Court has clearly stated, “[I]n determining whether the

doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court

need only conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.’” 197 Las Americas has satisfied that

_____________________

193

Nat’l Press Photographers Ass’n v. McCraw, 90 F.4th 770, 786 (5th Cir. 2024).

194

Id. (quoting TARA, 28 F.4th at 672).

195

See supra notes 124-27 and accompanying text.

196

ROA.959-60, ¶ 10 & n.1 (citing Texas Senate Committee on Border Security, at

49:19-50:45 (Nov. 1, 2023), https://senate.texas.gov/videoplayer.php?vid=18888&

lang=en) (statement of Steve McCraw, Director, Tex. Dep’t of Pub. Safety)).

197

Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255 (2011) (second alteration

in original) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645

(2002)).

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requirement in its complaint and by evidence presented during the

preliminary injunction proceedings.

Director Martin asserts that “no Texas official will enforce any part

of this law against” Las Americas, so it cannot “avail itself of Ex Parte

Young” to overcome sovereign immunity. But Director Martin has pointed

to no holding that Ex parte Young suits must fail when the challenged law will

not be enforced against the plaintiff. Indeed, the Supreme Court and our

court have permitted many plaintiffs to overcome sovereign immunity based

on Ex parte Young even when the challenged law is not being, or will not be,

enforced directly against the plaintiff itself. 198

2

Director Martin also contends that Las Americas lacks a cause of

action to pursue its claim. The Director appears to advance two arguments

in support. First, in his motion for a stay pending appeal, the Director argued

that Las Americas lacks an equitable cause of action because it does “not

allege enforcement of S.B. 4 threatens imminent legal proceedings against”

it and it has not “sued any official who may potentially enforce the law

against” it. It is unclear whether the Director continues to rely on this

argument in connection with his cause-of-action contention in the merits

briefing. Instead, the Director’s merits briefing seemingly limits this “wrong

_____________________

198

See, e.g., id. at 255-57 (suit by independent state agency to obtain records from

another state agency); Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 471-

73 (5th Cir. 2020) (en banc) (suit by a utility district to prevent state officials from, inter

alia, certifying other water- or wastewater-service entities); TDP II, 978 F.3d 168, 179-80

(5th Cir. 2020) (suit by, inter alia, a political party arguing that limitations on mail-in-voting

were unconstitutional); see also Book People, Inc. v. Wong, 91 F.4th 318, 335 (5th Cir. 2024)

(“[T]he same type of direct enforcement found in Ex [p]arte Young, for instance, where the

attorney general threatened civil and criminal prosecution . . . is not required.” (quoting

Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 519 (5th Cir.

2017))).

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plaintiff” argument to the sovereign immunity issue, as discussed above,

rather than the cause-of-action issue. But to the extent that Director Martin

maintains the argument that this characteristic of Las Americas’s suit

undermines its cause of action, that argument likewise fails. The Supreme

Court has on multiple occasions allowed actions in equity to proceed based

on Ex parte Young even when the government was not enforcing the

challenged law directly against the plaintiff.

The Supreme Court’s decision in Truax v. Raich 199 is one example.

Arizona had enacted a law that made it a crime for most businesses to employ

a workforce consisting of less than eighty percent “qualified electors or

native-born citizens of the United States.” 200 Truax, a restaurant owner, told

his employee Raich, a native of Austria, he would be fired because of the new

law. 201 Raich filed a suit in equity against Truax, as well as Arizona’s attorney

general and a county attorney, seeking “a decree declaring the act to be

unconstitutional and restraining action thereunder.” 202 The defendants

objected “that the complainant cannot sue save to redress his own grievance;

that is, that the servant cannot complain for the master, and that it is the

master who is subject to prosecution, and not the complainant.” 203 The

Supreme Court rejected this argument, concluding that the injury caused by

the law would be felt by employees like Raich. 204 The Court said:

It is, therefore, idle to call the injury indirect or remote. It is

also entirely clear that unless the enforcement of the act is

_____________________

199

239 U.S. 33 (1915).

200

Id. at 35.

201

Id. at 36.

202

Id.

203

Id. at 38 (citation omitted).

204

Id. at 38-39.

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restrained the complainant will have no adequate remedy, and

hence we think that the case falls within the class in which, if

the unconstitutionality of the act is shown, equitable relief may

be had. 205

The same reasoning prevailed in Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary. 206 There, Oregon had imposed criminal

penalties on persons who had charge of a child and who “fail[ed] or

neglect[ed] or refuse[d] to send such child to a public school.” 207 Religious

corporations that owned or operated private schools sued the Governor of

Oregon in equity alleging that the law violated the Fourteenth

Amendment. 208 The Supreme Court acknowledged that the plaintiffs, as

corporations, “cannot claim for themselves the liberty which the Fourteenth

Amendment guarantees.” 209 Yet, citing Truax, the Court reached the merits

because the corporations alleged that the law would cause them to shutter

their schools. 210 It was no obstacle that the Oregon law imposed penalties on

children’s custodians, not on schools. So too, here, the fact that Director

Martin will not enforce S. B. 4 against Las Americas does not disenable it

from suing in equity to challenge the law.

Second, Director Martin argues that Las Americas lacks a cause of

action because Las Americas “alleges only a cause of action under the

Supremacy Clause.” As the Director points out, the Supreme Court held in

_____________________

205

Id. at 39.

206

268 U.S. 510 (1925).

207

Id. at 530 n.1.

208

See id. at 533.

209

Id. at 535.

210

Id.

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Armstrong v. Exceptional Child Center, Inc. 211 that the Supremacy Clause

“does not create a cause of action.” 212 Director Martin argues that Las

Americas must identify a statute containing “‘“rights-creating” language’

permitting [its] suit” but has not done so, making its suit “a nullity.” 213

The Director misunderstands both Las Americas’s suit and the

Supreme Court’s analysis in Armstrong. Las Americas can sue in equity to

enjoin an allegedly preempted state law. Even if a statute “does not confer a

private right, a plaintiff is not prevented from gaining equitable relief on

preemption grounds.” 214 “The ‘ability to sue to enjoin unconstitutional

actions by state and federal officers is the creation of courts of equity.’” 215

The Armstrong decision itself exemplifies the existence of a

preemption cause of action in equity. There, the Supreme Court held the

Supremacy Clause “certainly does not create a cause of action. It instructs

courts what to do when state and federal law clash, but is silent regarding who

may enforce federal laws in court, and in what circumstances they may do

so.” 216 The Court explained, “[t]he ability to sue to enjoin unconstitutional

_____________________

211

575 U.S. 320 (2015).

212

Id. at 324-25.

213

See Alexander v. Sandoval, 532 U.S. 275, 288 (2001).

214

Crown Castle Fiber, L.L.C. v. City of Pasadena, 76 F.4th 425, 434-45 (5th Cir.

2023); see also Richard H. Fallon, Jr., et al., Hart and Wechsler’s the

Federal Courts and the Federal System 845 (7th ed. 2015) (“[T]he rule that

there is an implied right of action to enjoin state or local regulation that is preempted by a

federal statutory or constitutional provision . . . long appeared to be well-established.”).

215

Crown Castle Fiber, 76 F.4th at 434 (quoting Armstrong, 575 U.S. at 327); see also

Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 475 (5th Cir. 2020) (en banc)

(holding that the plaintiff “has a cause of action against [state officials] at equity, regardless

of whether it can invoke § 1983”).

216

Armstrong, 575 U.S. at 325.

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actions . . . is the creation of courts of equity, and reflects a long history of

judicial review of illegal executive action, tracing back to England.” 217 “It is

a judge-made remedy.” 218 Accordingly, despite rejecting the argument that

the plaintiffs in that case could assert a cause of action under the Supremacy

Clause, the remainder of the Armstrong opinion analyzed whether the

plaintiffs’ preemption claim could “proceed against Idaho in equity.” 219 The

Court accepted that “equitable relief . . . is traditionally available to enforce

federal law,” but it ultimately held that Congress had displaced the Armstrong

plaintiffs’ equitable cause of action in that case by enacting the Medicaid

Act. 220 Given the absence of such displacement here, as the district court

recognized, 221 Las Americas may proceed against Director Martin in equity.

Finally, we disagree with the dissenting opinion’s contention that Las

Americas lacks an equitable cause of action because enforcement of S. B. 4

will not invade its legal rights. 222 Neither Director Martin nor Las Americas

addressed this issue in their briefing, so we lack a fulsome response from the

parties about this alleged deficiency in Las Americas’s case. The Supreme

Court, however, said the following about the schools’ suit in Pierce:

Generally, it is entirely true, as urged by counsel, that no

person in any business has such an interest in possible

customers as to enable him to restrain exercise of proper power

of the state upon the ground that he will be deprived of

patronage. But the injunctions here sought are not against the

_____________________

217

Id. at 327.

218

Id.

219

Id.

220

Id. at 327-29.

221

See United States v. Texas, 719 F. Supp. 3d 640, 661-62 (W.D. Tex. 2024).

222

See post at 141-42.

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exercise of any proper power. Appellees asked protection

against arbitrary, unreasonable, and unlawful interference with

their patrons and the consequent destruction of their business

and property. Their interest is clear and immediate, within the

rule approved in Truax v. Raich, Truax v. Corrigan,[223] and

Terrace v. Thompson,[224] and many other cases where

injunctions have issued to protect business enterprises against

interference with the freedom of patrons or customers. 225

Given the parallels between the patrons in Pierce and the immigrant-clients

in this case, as well as Texas’s improper exercise of power, we can readily

imagine Las Americas successfully articulating a similar argument here. At

this early stage of the litigation, no more is necessary.

B

We must determine what the plaintiff must show to prevail on this

facial challenge. “[A] plaintiff bringing a facial challenge must ‘establish that

no set of circumstances exists under which the [law] would be valid,’ or show

that the law lacks ‘a plainly legitimate sweep.’” 226 Director Martin contends

that this standard means the preliminary injunction must be vacated if there

is a single hypothetical application of S. B. 4 that may be legitimately

enforced.

_____________________

223

257 U.S. 312 (1921).

224

263 U.S. 197 (1923).

225

Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535-

36 (1925) (citation omitted).

226

Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021) (second alteration

in original) (citations omitted) (first quoting United States v. Salerno, 481 U.S. 739, 745

(1987); and then quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

449 (2008)).

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Of course, if a law intrudes on a field occupied by Congress, every

application of that law is preempted. 227 That is because “[w]here Congress

occupies an entire field, . . . even complementary state regulation is

impermissible.” 228 The dissenting opinion points to the Supreme Court’s

decision in Moody v. NetChoice, LLP, 229 for the proposition that “in all cases

outside the First Amendment, courts must apply United States v. Salerno.” 230

However, Moody was not a preemption case, and it did not consider how, as

a matter of logic, Salerno could apply when every application of a law in a field

occupied by Congress is preempted.

Field preemption aside, it is not clear-cut that Director Martin’s

standard, based on Salerno, is correct. Some of our sister circuits have

expressed uncertainty about whether the Salerno standard—that a plaintiff

must “establish that no set of circumstances exists under which the [law]

would be valid” 231—applies in the preemption context. 232 Those circuits

have further reasoned that even if the Salerno standard applies, positing a

_____________________

227

See Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 589 (1987)

(explaining that “[i]f the Federal Government occupied the field of environmental

regulation of unpatented mining claims in national forests,” state environmental regulation

would be preempted regardless of their form).

228

Arizona v. United States, 567 U.S. 387, 401 (2012).

229

603 U.S. 707 (2024).

230

Post at 159 (citing Moody, U.S. at 723); see United States v. Salerno, 481 U.S. 739

(1987).

231

Salerno, 481 U.S. at 745.

232

See, e.g., Club Madonna Inc. v. City of Mia. Beach, 42 F.4th 1231, 1256 (11th Cir.

2022); League of Women Voters of Ind., Inc. v. Sullivan, 5 F.4th 714, 728-29 (7th Cir. 2021);

United States v. Sup. Ct. of N.M., 839 F.3d 888, 917 (10th Cir. 2016); Lozano v. City of

Hazelton, 724 F.3d 297, 313 n.22 (3d Cir. 2013). But see Puente Ariz. v. Arpaio, 821 F.3d

1098, 1104 n.6 (9th Cir. 2016).

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hypothetical non-preempted application is not sufficient to defeat a facial

preemption challenge. 233

We see support for our sister circuits’ interpretation in the Supreme

Court’s cases. The Court has vindicated facial preemption challenges

despite possible non-preempted applications. 234 However, in a much earlier

decision, the Court held that to defeat a facial challenge in which it was

asserted that the federal regulation “per se” preempted state regulation, the

state governmental authority “needed merely to identify a possible set of

permit conditions not in conflict with federal law.” 235 Ultimately, however,

we need not take a side in this debate. For the reasons we discuss below, Las

Americas has likely shown there are no non-preempted applications of

Texas’s new immigration laws.

Before turning to that analysis, we discuss two important limits on the

scope of the facial challenge inquiry. First, in City of Los Angeles v. Patel, 236

the Supreme Court explained that a court’s assessment of a facial challenge

is limited to a law’s applications that are not already legitimately authorized

by other laws. The Patel decision concerned a facial challenge to a Los

Angeles ordinance that compelled “‘[e]very operator of a hotel to keep a

_____________________

233

See, e.g., Club Madonna, 42 F.4th at 1256; Sullivan, 5 F.4th at 728-29; Sup. Ct.,

839 F.3d at 917; Lozano, 724 F.3d at 313 n.22. But see Metro PCS Cal., LLC v. Picker, 970

F.3d 1106, 1122 (9th Cir. 2020).

234

See Arizona v. United States, 567 U.S. 387, 408-10 (2012) (holding a state law

provision was facially conflict preempted without asking whether there were applications

of the provision that would be consistent with federal law or citing Salerno); see also id. at

457-58 (Alito, J., concurring in part and dissenting in part) (dissenting in part on the

basis that “[t]he point is that there are plenty of permissible applications of § 6” and citing

Salerno, contending the United States did not show there was no set of circumstances under

which the statute would be valid).

235

Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 593 (1987).

236

576 U.S. 409 (2015).

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record’ containing specified information concerning guests and to make this

record ‘available to any officer of the Los Angeles Police Department for

inspection’ on demand.” 237 Los Angeles argued that “facial challenges to

statutes authorizing warrantless searches must fail because such searches will

never be unconstitutional in all applications.” 238 The Supreme Court

remarked that Los Angeles misunderstood how courts analyze facial

challenges. 239 The Court said:

Under the most exacting standard the Court has prescribed for

facial challenges, a plaintiff must establish that a “law is

unconstitutional in all of its applications.” But when assessing

whether a statute meets this standard, the Court has

considered only applications of the statute in which it actually

authorizes or prohibits conduct. 240

The Patel decision reasoned: “Similarly, when addressing a facial

challenge to a statute authorizing warrantless searches, the proper focus of

the constitutional inquiry is searches that the law actually authorizes, not

those for which it is irrelevant.” 241 The Court further rejected the argument

that “a statute authorizing warrantless searches may still have independent

force if it imposes a penalty for failing to cooperate in a search conducted

under a warrant or in an exigency.” 242 The Court explained that “[t]his

argument gets things backwards. An otherwise facially unconstitutional

_____________________

237

Id. at 412 (alteration in original) (quoting L.A., Cal. Municipal Code

§ 41.49(2), (3)(a), (4) (2015)).

238

Id. at 417.

239

Id. at 418.

240

Id. (citation omitted) (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 (2008)).

241

Id.

242

Id. at 419 n.1.

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statute cannot be saved from invalidation based solely on the existence of a

penalty provision that applies when searches are not actually authorized by

the statute.” 243 Patel teaches that, in resolving a facial challenge, the relevant

universe of applications are those not already authorized by other laws—even

if the challenged law imposes a new penalty.

Second, in Whole Woman’s Health v. Hellerstedt,244 the Supreme

Court explained that a robust severability clause is not sufficient to save an

otherwise unconstitutional law. Of course, Hellerstedt, which held that a

Texas law was facially unconstitutional because it imposed an undue burden

on the ability to obtain an abortion, has been largely abrogated by Dobbs v.

Jackson Women’s Health Organization. 245 Nevertheless, the Court’s analysis

of the law’s severability clause was not abrogated by Dobbs and remains good

law.

After holding the law was unconstitutional, Hellerstedt turned to

Texas’s arguments against facial invalidation. Texas argued that “facial

invalidation of both challenged provisions is precluded by H.B. 2’s

severability clause.” 246 That severability clause was substantially identical to

S. B. 4’s severability clause in this case. 247 The severability clause in

Hellerstedt stated that “every provision, section, subsection, sentence,

_____________________

243

Id.

244

579 U.S. 582 (2016), abrogated by, Dobbs v. Jackson Women’s Health Org., 597

U.S. 215 (2022).

245

597 U.S. 215 (2022).

246

Hellerstedt, 579 U.S. at 624.

247

S. B. 4’s severability clause reads: “It is the intent of the legislature that every

provision, section, subsection, sentence, clause, phrase, or word in this Act, and every

application of the provisions in this Act to every person, group of persons, or

circumstances, is severable from each other.” S. B. 4, 88th Leg., 4th Called Sess., § 8 (Tex.

2023).

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clause, phrase, or word in this Act, and every application of the provision in

this Act, are severable from each other.” 248 It further provided that if “any

application of any provision in this Act to any person, group of persons, or

circumstances is found by a court to be invalid, the remaining applications of

that provision to all other persons and circumstances shall be severed and

may not be affected.” 249 The Court rejected the idea that the severability

clause precluded facial invalidation. It reiterated its reasons for holding that

the statute imposed an undue burden and stated, “The provisions are

unconstitutional on their face: Including a severability provision in the law

does not change that conclusion.” 250

Significantly, the Court explained:

Severability clauses, it is true, do express the enacting

legislature’s preference for a narrow judicial remedy. As a

general matter, we attempt to honor that preference. But our

cases have never required us to proceed application by

conceivable application when confronted with a facially

unconstitutional statutory provision. “We have held that a

severability clause is an aid merely; not an inexorable

command.” Reno v. American Civil Liberties Union, [521 U.S.

844, 884 n.49] (1997) (internal quotation marks omitted).

Indeed, if a severability clause could impose such a

requirement on courts, legislatures would easily be able to

insulate unconstitutional statutes from most facial review. See

ibid. (“It would certainly be dangerous if the legislature could

set a net large enough to catch all possible offenders, and leave

it to the courts to step inside and say who could be rightfully

detained, and who should be set at large. This would, to some

_____________________

248

579 U.S. at 624.

249

Id.

250

Id. at 624-25.

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extent, substitute the judicial for the legislative department of

the government” (internal quotation marks omitted)). A

severability clause is not grounds for a court to “devise a

judicial remedy that . . . entail[s] quintessentially legislative

work.” Ayotte v. Planned Parenthood of Northern New Eng., [546

U.S. 320, 329] (2006). Such an approach would inflict

enormous costs on both courts and litigants, who would be

required to proceed in this manner whenever a single

application of a law might be valid. We reject Texas’ invitation

to pave the way for legislatures to immunize their statutes from

facial review. 251

The Court concluded that “Texas’ attempt to broadly draft a

requirement to sever ‘applications’ does not require us to proceed in

piecemeal fashion when we have found the statutory provisions at issue

facially unconstitutional.” 252

We proceed with our preemption analysis with these limitations in

mind.

C

The Supremacy Clause makes the laws of the United States “the

supreme Law of the Land; . . . any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.” 253 The Clause declares a simple

truth, “which flows immediately and necessarily from the institution of a

federal government”—that federal law preempts contrary state law. 254 In

doing so, the Clause serves as a cornerstone of our system of federalism,

_____________________

251

Id. at 625.

252

Id. at 626.

253

U.S. Const. art. VI, cl. 2.

254

The Federalist No. 33, at 205 (Alexander Hamilton) (Clinton Rossiter

ed., 1961).

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providing the federal government with a “decided advantage” to “impose its

will on the States.” 255

Under the doctrine of preemption, Congress may displace state law

expressly by using explicit language in a federal statute. 256 In such a case,

“the courts’ task is an easy one.” 257 We focus on the “plain wording” of the

preemption language to determine the preemptive effect of the statute. 258

However, Congress does not always make its intent readily apparent. In the

absence of an explicit preemption clause, congressional intent may be

inferred “from a framework of regulation ‘so pervasive . . . that Congress left

no room for the States to supplement it’ or where there is a ‘federal

interest . . . so dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject.’” 259 We refer to this doctrine

as field preemption.

Federal law also “naturally preempt[s]” state law to the extent the

state law conflicts with a federal statute. 260 “This includes cases where

‘compliance with both federal and state regulations is a physical

impossibility,’ and those instances where the challenged state law ‘stands as

_____________________

255

Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).

256

See, e.g., CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).

257

Eng. v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).

258

Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011) (quoting CSX

Transp., Inc., 507 U.S. at 664).

259

Arizona v. United States, 567 U.S. 387, 399 (2012) (quoting Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947)).

260

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).

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an obstacle to the accomplishment and execution of the full purposes and

objectives of Congress.’” 261 We refer to this doctrine as conflict preemption.

It is undisputed that Congress has not explicitly preempted S. B. 4 by

including specific language in any of its enactments governing the entry and

removal of aliens. Instead, the plaintiffs contend S. B. 4 is both field and

conflict preempted by federal law. In light of these concerns, Las Americas

brought a facial challenge to enjoin the enforcement of S. B. 4. We address

the preemption arguments in two parts: (1) we analyze whether S. B. 4

intrudes on a field Congress intended to occupy, and (2) we examine the

extent to which S. B. 4 conflicts with federal law.

1

Field preemption occurs when “States are precluded from regulating

conduct in a field that Congress, acting within its proper authority, has

determined must be regulated by its exclusive governance.” 262 The Supreme

Court has indicated that courts should hesitate to infer field preemption

unless “the nature of the regulated subject matter permits no other

conclusion” or “Congress has unmistakably so ordained.” 263 When

analyzing field preemption, “the relevant field should be defined

narrowly.” 264 The operative question, therefore, is whether Congress

_____________________

261

Arizona, 567 U.S. at 399 (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142-43 (1963); and then quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

262

Id.

263

DeCanas v. Bica, 424 U.S. 351, 356 (1976) (quoting Fla. Lime & Avocado Growers,

373 U.S. at 142).

264

City of El Cenizo v. Texas, 890 F.3d 164, 177 (5th Cir. 2018) (first citing Arizona,

567 U.S. at 400-01; and then citing DeCanas, 424 U.S. at 360 n.8).

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intended to “occupy the field” 265 of immigration policies concerning entry

into and removal from the United States.

The district court concluded that “the federal government has both a

dominant interest and a pervasive regulatory framework” to control

immigration into the United States, “preclud[ing] state regulation in the

area.” 266 We agree.

For nearly 150 years, the Supreme Court has recognized that the

power to control immigration—the entry, admission, and removal of aliens—

is exclusively a federal power. 267 Despite this fundamental axiom, S. B. 4

creates separate, distinct state criminal offenses for unauthorized entry and

reentry of aliens into Texas from a foreign nation, and it provides procedures

_____________________

265

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000) (citing California

v. ARC Am. Corp., 490 U.S. 93, 100 (1989)).

266

United States v. Texas, 719 F. Supp. 3d 640 (W.D. Tex. 2024).

267

See, e.g., Plyler v. Doe, 457 U.S. 202, 228 n.23 (1982) (“[T]he State has no direct

interest in controlling entry into this country, that interest being one reserved by the

Constitution to the Federal Government . . . .”); Hampton v. Mow Sun Wong, 426 U.S. 88,

102 n.21 (1976) (“It is important to note that the authority to control immigration

is . . . vested solely in the Federal Government, rather than the States . . . .”); DeCanas,

424 U.S. at 354 (“Power to regulate immigration is unquestionably exclusively a federal

power.”); Galvan v. Press, 347 U.S. 522, 531 (1954) (“[T]hat the formulation of . . . policies

[regarding the entry of aliens and their right to remain here] is entrusted exclusively to

Congress has become about as firmly [e]mbedded in the legislative and judicial tissues of

our body politic as any aspect of our government.”); Truax v. Raich, 239 U.S. 33, 42 (1915)

(“The authority to control immigration—to admit or exclude aliens—is vested solely in

the Federal government.”); Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893) (“The

power to exclude or to expel aliens, being a power affecting international relations, is vested

in the political departments of the government, and is to be regulated by treaty or by act of

[C]ongress . . . .”); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (“The passage of laws

which concern the admission of citizens and subjects of foreign nations to our shores

belongs to Congress, and not to the States.”); Henderson v. Mayor of New York, 92 U.S. 259,

272 (1875) (holding immigration is a “power[], which, from [its] nature, [is] exclusive in

Congress”).

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for their removal. More specifically, §§ 51.02 and 51.03 prohibit the unlawful

entry and reentry of aliens into the state from outside the country, 268 and

article 5B.002 empowers Texas state judges and magistrates to order aliens

to return to the foreign nation from which they entered or attempted to

enter. 269

The Supreme Court’s decision in Arizona v. United States 270 provides

considerable guidance as to whether the plaintiffs are likely to succeed on

their claim that these provisions are field preempted by federal law. There,

the Court held a provision of Arizona’s S. B. 1070—§ 3—was field

preempted. 271 The state provision punished an alien’s “willful failure to

complete or carry an alien registration document,” 272 adopting the same

substantive standards as the federal law that required aliens to carry proof of

registration. 273 After analyzing the federal regulations in the “field of alien

registration,” the Court observed, “The framework enacted by Congress

leads to the conclusion . . . that the Federal Government has occupied the

field of alien registration.” 274 The Court noted, “The federal statutory

directives provide a full set of standards governing alien registration,

_____________________

268

Tex. Penal Code §§ 51.02-03.

269

Tex. Code Crim. Proc. art. 5B.002.

270

567 U.S. 387 (2012).

271

Id. at 403.

272

Id. at 400 (quoting Ariz. Rev. Stat. Ann. § 13-1509(A)).

273

Id. at 402.

274

Id. at 401.

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including the punishment for noncompliance.” 275 The Court explained this

national registration scheme “was designed as a ‘harmonious whole.’” 276

Director Martin correctly observes the statutes at issue in Arizona did

not regulate the entry and removal of aliens. But the Court’s holding in

Arizona provides guiding principles. The Court held: “Where Congress

occupies an entire field, as it has in the field of alien registration, even

complementary state regulation is impermissible. Field preemption reflects

a congressional decision to foreclose any state regulation in the area, even if

it is parallel to federal standards.” 277

Applying Arizona’s guiding principles, we believe Congress also

intended to occupy the field of immigration policies concerning entry into

and removal from the United States. In 1952, Congress enacted the

Immigration and Nationality Act (INA) to establish a “comprehensive

federal statutory scheme for regulation of immigration and naturalization”

and to set “the terms and conditions of admission to the country and the

subsequent treatment of aliens lawfully in the country.” 278 The Act’s

“central concern” is the “entry and stay of aliens” in the United States. 279

The Act makes it unlawful for any alien to enter the United States other than

through a port of entry, 280 and it punishes any alien who unlawfully reenters

_____________________

275

Id.

276

Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 72 (1941)).

277

Id. (citing Silkwood v. Kerr–McGee Corp., 464 U.S. 238, 249 (1984)).

278

DeCanas v. Bica, 424 U.S. 351, 353, 359 (1976); accord Chamber of Com. v.

Whiting, 563 U.S. 582, 587 (2011).

279

DeCanas, 424 U.S. at 359.

280

8 U.S.C. § 1325(a).

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or remains in the United States. 281 By enacting the INA, Congress

established a comprehensive framework to identify who may enter, 282 how

they may enter, 283 where they may enter, 284 and what penalties apply for those

who enter unlawfully. 285

When analyzing § 3 of S. B. 1070, the Arizona Court explained that

“[f]ederal law makes a single sovereign responsible for maintaining a

comprehensive and unified system to keep track of aliens within the Nation’s

borders.” 286 This logic applies to the equally—if not more—sensitive topic

of aliens entering and remaining in the country.

The very moment an alien enters the United States, they are subject

to an intricate system of federal commands. In describing this system, we

note at the outset that after the Homeland Security Act of 2002, many

_____________________

281

Id. § 1326(a).

282

See, e.g., id. § 1182 (establishing classes of aliens ineligible for visas or

admission).

283

See, e.g., id. § 1181 (establishing document requirements for admission); id.

§ 1225 (establishing aliens “who are applicants for admission or otherwise seeking

admission or readmission to or transit through the United States shall be inspected by

immigration officers”); id. § 1185 (“Unless otherwise ordered by the President, it shall be

unlawful . . . for any alien to depart from or enter . . . the United States except under such

reasonable rules, regulations, and orders, and subject to such limitations and exceptions as

the President may prescribe.”).

284

See, e.g., id. § 1224 (authorizing the Attorney General to designate ports of entry

for aliens arriving by aircraft); see also 8 C.F.R. § 100.4 (establishing different ports of entry

for different classes of aliens).

285

See, e.g., 8 U.S.C. § 1325(a) (establishing criminal penalties for improper entry

by aliens); id. § 1326(a) (establishing criminal penalties for improper reentry of removed

aliens).

286

Arizona v. United States, 567 U.S. 387, 401-02 (2012).

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references in the INA to the “Attorney General” are now read to mean the

Secretary of Homeland Security. 287 With that context, we proceed.

When an alien enters the United States, they immediately receive the

federal immigration status of “applicant for admission” and may lawfully

remain in this country only with federal permission. 288 If an alien enters the

United States “at any time or place other than as designated by the Attorney

General,” they are “inadmissible” and removable under 8 U.S.C.

§§ 1182(a)(6)(A)(i) and 1229a(e)(2). 289 But, before they are removed, all

aliens are subject to federal inspection. 290 Congress has created a

comprehensive—and likely exclusive—system for federal immigration

officers to determine the admissibility and removability of aliens.

Congress criminalized the unlawful entry and reentry of aliens under

8 U.S.C. §§ 1325(a) and 1326(a). But regardless of whether an alien violates

these provisions, an immigration officer must still determine whether they

may remain in the United States or whether they must be removed. The

“usual removal process involves an evidentiary hearing before an

immigration judge.” 291 At that hearing, the alien may be represented by

counsel, present evidence on their behalf, and attempt to show why they

should be admitted. 292 Among other things, the alien may claim asylum by

expressing fear of persecution or harm upon return to their home country;

seek relief from removal by asserting a Convention Against Torture (CAT)

_____________________

287

See 6 U.S.C. § 557; Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).

288

8 U.S.C. § 1225(a)(1); see also id. §§ 1181, 1182.

289

Id. §§ 1182(a)(6)(A)(i), 1229a(e)(2).

290

Id. § 1225(a)(3).

291

DHS v. Thuraissigiam, 591 U.S. 103, 108 (2020).

292

See 8 U.S.C. § 1229a(b)(4); 8 C.F.R. § 1240.11(c).

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claim; or seek dispensation from the Attorney General. 293 If their claim is

rejected and the alien is ordered removed, they can appeal the removal order

to the Board of Immigration Appeals. 294 If that appeal is unsuccessful, the

alien is generally entitled to review in a federal court of appeals. 295

There is also a more expedited procedure for removal. If an

immigration officer determines that an alien who is arriving in the United

States is inadmissible because they misrepresented their admission status or

lack valid admission documentation, the officer must order the alien removed

from the United States without further hearing or review. 296 Other aliens

who are already present in the United States are subject to the same

expedited removal if they “(1) [are] inadmissible because [they] lack a valid

entry document; (2) [have] not ‘been physically present in the United States

continuously for the 2-year period immediately prior to the date of the

determination of inadmissibility’; and (3) [are] among those whom the

Secretary of Homeland Security has designated for expedited removal.” 297

All aliens subject to this expedited removal procedure can avoid removal by

claiming asylum or a fear of persecution, at which point they are referred to

an asylum officer. 298 If the asylum officer finds the applicant does not have a

_____________________

293

See 8 C.F.R. § 1240.11(c) (asylum); id. § 208.16 (CAT); 8 U.S.C. § 1229b

(dispensation from Attorney General); see also Arizona v. United States, 567 U.S. 387, 396

(2012) (“If removal proceedings commence, aliens may seek asylum and other

discretionary relief allowing them to remain in the country or at least to leave without

formal removal.”).

294

8 U.S.C. § 1229a(c)(5); 8 C.F.R. § 1003.1(b).

295

8 U.S.C. § 1229a(c)(5), 1252(a).

296

Id. §§ 1225(b)(1)(A)(i), 1182(a)(6)(C), 1182(a)(7).

297

DHS v. Thuraissigiam, 591 U.S. 103, 109 (2020) (citing 8 U.S.C.

§ 1225(b)(1)(A)(i), (b)(1)(A)(iii)(I)-(II)).

298

8 U.S.C. § 1225(b)(1)(A)(ii).

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credible fear, a supervisor will review the asylum officer’s determination. 299

The supervisor’s review can be appealed to an immigration judge. 300

Against the backdrop of this national immigration system, and

applying the guiding principles espoused in Arizona, it becomes clear that the

new Texas laws pertaining to entry and removal infringe on a preempted

field.

First, the Supreme Court in Arizona explained that “[a] principal

feature of the [federal] removal system is the broad discretion exercised by

immigration officials.” 301 As part of this discretion, the Arizona Court

acknowledged, “Federal officials, as an initial matter, must decide whether

it makes sense to pursue removal at all.” 302

Indeed, the INA indicates executive discretion is paramount to

immigration policy. Congress gave the Executive the authority to establish

“reasonable rules, regulations, and orders” regarding any aliens attempting

to depart from or enter the United States. 303 Congress gave the Attorney

General authority to waive various requirements that would otherwise stand

_____________________

299

8 C.F.R. § 208.30(e)(8).

300

Id. § 1003.42.

301

Arizona v. United States, 567 U.S. 387, 396 (2012).

302

Id.

303

8 U.S.C. § 1185(a)(1).

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in the way of admission. 304 Congress also allowed immigration judges the

ability to “cancel removal” of an alien who meets certain statutory criteria. 305

Further, Congress has given the Executive statutory authority to

determine when state officers can “perform a function of an immigration

officer in relation to the investigation, apprehension, or detention of aliens in

the United States,” and has generally subjected any state officers performing

one of these functions to supervision by the Executive. 306 If it chose to do so,

the Executive could rely upon statutory authority to request Texas to assist,

under the supervision of federal officers, in arresting the very aliens whom

the Director now says DPS has the authority to arrest under state law,

unsupervised by any federal officer or agency. The Executive Branch has in

fact sought Texas’s assistance under various statutes, but the federal

government has not utilized Texas’s resources to the extent desired by the

Director. Regardless of the wisdom of the Executive’s actions and inactions,

_____________________

304

See, e.g., id. § 1158(b)(2)(A)(v) (providing Attorney General discretion to waive

asylum eligibility requirements if he believes “there are not reasonable grounds for

regarding the alien as a danger to the security of the United States”); id. § 1227(a)(1)(H)

(providing Attorney General discretion, under certain circumstances, to waive removal

provisions for aliens deemed inadmissible because of misrepresenting material facts when

seeking admission); id. § 1182(a)(9)(B)(v) (providing Attorney General the “sole

discretion” to waive certain admissibility bars for aliens “unlawfully present” if refusal to

admit the alien would result in “extreme hardship” to “lawfully resident spouse or

parent”); id. § 1182(d)(1) (providing Attorney General discretion to waive admissibility

requirements for aliens aiding law enforcement when the Attorney General believes it is in

the “national interest to do so”); id. § 1182(d)(14) (providing Secretary of Homeland

Security discretion to waive admissibility requirements for aliens that are victims of certain

crimes and helpful to law enforcement when the Secretary considers it to be “in the public

or national interest to do so”).

305

Id. § 1229b(a)-(b).

306

See id. § 1357(g)(1)-(3); see also infra notes 412 and accompanying text.

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the congressionally designed system allows the Executive to decide whether

and how to pursue aliens illegally present in the United States.

Congress evinced an intent that the Executive should have the sole

discretion to enforce the INA’s entry and removal provisions. The broadest

exercise of this discretion is the Executive’s decision not to pursue either

civilly or criminally the very aliens whom the Texas legislature has drawn a

bead upon in enacting new state laws. In fact, the Court observed in Arizona

that “[d]iscretion in the enforcement of immigration law embraces

immediate human concerns” and “policy choices that bear on this Nation’s

international relations.” 307 For instance, “[r]eturning an alien to his own

country may be deemed inappropriate even where he has committed a

removable offense or fails to meet the criteria for admission.” 308 “The

dynamic nature of relations with other countries requires the Executive

Branch to ensure that enforcement policies are consistent with this Nation’s

foreign policy with respect to these and other realities.” 309

The Supreme Court reinforced the Executive’s discretion in

enforcing immigration laws in United States v. Texas. 310 There, Texas and

Louisiana challenged the Biden Administration’s guidelines that

“prioritize[d] the arrest and removal from the United States of noncitizens

who are suspected terrorists or dangerous criminals, or who have unlawfully

entered the country only recently.” 311 Texas and Louisiana also

“contend[ed] that for certain noncitizens, such as those who are removable

_____________________

307

Arizona, 567 U.S. at 396.

308

Id.

309

Id. at 397 (emphasis added).

310

599 U.S. 670 (2023).

311

Id. at 673.

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due to a state criminal conviction, § 1226(c) of Title 8 says that the

Department ‘shall’ arrest those noncitizens and take them into custody when

they are released from state prison.” 312 Though the Supreme Court resolved

the case based on standing, the reasoning supporting the Supreme Court’s

holding appears to be equally applicable in assessing whether S. B. 4—which

is aimed at increasing arrests and prosecutions of illegally present aliens—

impinges on discretion granted by the Constitution to the Executive. The

Supreme Court held: “Article II of the Constitution assigns the ‘executive

Power’ to the President and provides that the President ‘shall take Care that

the Laws be faithfully executed.’” 313 The Court said: “Under Article II, the

Executive Branch possesses authority to decide ‘how to prioritize and how

aggressively to pursue legal actions against defendants who violate the

law.’” 314 “[T]he Executive Branch has exclusive authority and absolute

discretion to decide whether to prosecute a case.” 315 The Supreme Court

held that this exclusive authority extended to enforcement of the

immigrations laws at issue: “That principle of enforcement discretion over

arrests and prosecutions extends to the immigration context, where the

Court has stressed that the Executive’s enforcement discretion implicates

not only ‘normal domestic law enforcement priorities’ but also ‘foreign-

policy objectives.’” 316 The exclusive authority over removal was expressly

set forth: “In line with those principles, this Court has declared that the

_____________________

312

Id. at 674.

313

Id. at 678 (citing U.S. Const. art. II, § 1, cl. 1; § 3).

314

Id. (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021)).

315

Id. at 679 (emphasis added) (quoting United States v. Nixon, 418 U.S. 683, 693

(1974)).

316

Id. (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 490-91

(1999)).

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Executive Branch also retains discretion over whether to remove a noncitizen

from the United States.” 317

Second, as part of its field-preemption analysis in Arizona, the

Supreme Court pointed to the fact that the Arizona law regarding alien

registration “rules out probation as a possible sentence (and also eliminates

the possibility of a pardon),” while federal law did not. 318 In the present case,

a defendant may be removed before federal proceedings that would permit

her to remain in the United States lawfully have been initiated or concluded.

Under federal law, an alien who does not enter through a designated port of

arrival may nevertheless seek asylum. 319 A claim for asylum can be pursued

before, during, or after the conclusion of prosecution under federal law for

illegal entry. 320 In contrast, the Texas laws do not permit abatement of

prosecution and removal proceedings, 321 and, as a result, an alien may be

removed under article 5B.002(d) before asylum proceedings are concluded.

The Texas laws also fail to provide an alien the ability to pursue a

CAT claim once proceedings are commenced. Federal law markedly differs.

An alien in removal proceedings with a reasonable fear of persecution or

torture in her home country may request relief from removal based on the

CAT. 322 “[T]he Attorney General has no discretion to deny relief to a

_____________________

317

Id. (citing Arizona v. United States, 567 U.S. 387, 396 (2012)).

318

Arizona, 567 U.S. at 403.

319

8 U.S.C. § 1158(a)(1).

320

See, e.g., United States v. Vasquez-Hernandez, 924 F.3d 164, 169 (5th Cir. 2019).

321

Tex. Code Crim. Proc. art. 5B.003.

322

See 8 C.F.R. §§ 208.16, 208.31.

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noncitizen who establishes his eligibility. [Even a] conviction of an

aggravated felony has no effect on CAT eligibility . . . .” 323

Finally, the Supreme Court in Arizona emphasized the breadth of the

United States’ power “to control and conduct relations with foreign

nations” and the reasons for the existence of that power. 324 The Supreme

Court said in Arizona:

• “Decisions [regarding removal] touch on foreign relations and must

be made with one voice.” 325

• “Removal decisions, including the selection of a removed alien’s

destination, may implicate [the Nation’s] relations with foreign

powers and require consideration of changing political and economic

circumstances.” 326

• “The federal power to determine immigration policy is well settled.

Immigration policy can affect trade, investment, tourism, and

diplomatic relations for the entire Nation, as well as the perceptions

and expectations of aliens in this country who seek the full protection

of its laws.” 327

• “Perceived mistreatment of aliens in the United States may lead to

harmful reciprocal treatment of American citizens abroad.” 328

• “It is fundamental that foreign countries concerned about the status,

safety, and security of their nationals in the United States must be

_____________________

323

Moncrieffe v. Holder, 569 U.S. 184, 187 n.1 (2013).

324

See Arizona v. United States, 567 U.S. 387, 395 (2012).

325

Id. at 409.

326

Id. (alteration in original) (quoting Jama v. ICE, 543 U.S. 335, 348 (2005)).

327

Id. at 395.

328

Id.

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able to confer and communicate on this subject with one national

sovereign, not the 50 separate States.” 329

• “This Court has reaffirmed that ‘[o]ne of the most important and

delicate of all international relationships . . . has to do with the

protection of the just rights of a country’s own nationals when those

nationals are in another country.’” 330

These considerations apply in full force to S. B. 4 and certainly auger in favor

of concluding that Congress intended to occupy the field regarding the entry

and removal of aliens.

To be sure, Arizona did not recognize this field. But the Supreme

Court has held that federal law occupies a variety of other fields, including

alien registration; 331 nuclear safety; 332 aircraft noise; 333 the “design,

construction, alteration, repair, maintenance, operation, equipping,

personnel qualification, and manning” of tanker vessels; 334 wholesales of

_____________________

329

Id. (first citing Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1875); and then citing

The Federalist No. 3, at 44-45 (John Jay) (Clinton Rossiter ed., 1961) (observing that

federal power over foreign relations avoids situations where “bordering States . . . under

the impulse of sudden irritation, and a quick sense of apparent interest or injury” might

take actions that could undermine foreign relations)).

330

Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 64 (1941)).

331

See, e.g., id. at 401; see also Hines, 312 U.S. at 68 (“[I]t is of importance that this

legislation is in a field which affects international relations, the one aspect of our

government that from the first has been most generally conceded imperatively to demand

broad national authority. Any concurrent state power that may exist is restricted to the

narrowest of limits . . . .”).

332

See, e.g., Eng. v. Gen. Elec. Co., 496 U.S. 72, 82-85 (1990).

333

See, e.g., City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633 (1973).

334

See, e.g., United States v. Locke, 529 U.S. 89, 111 (2000) (quoting 46 U.S.C.

§ 3703(a)).

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natural gas in interstate commerce; 335 and locomotive equipment. 336 Alien

entry and removal is equally, if not more important, to the interest of the

national sovereign. 337 Congress’s creation of a complex, national system for

determining whether an alien may enter and remain in the United States is

strong evidence Congress intended to occupy the field of alien entry and

removal. The national immigration system in the INA touches a field “in

which the federal interest is so dominant that the federal system will be

assumed to preclude enforcement of state laws on the same subject.” 338

We do not write on a clean slate. There is nearly 150 years of Supreme

Court precedent suggesting that the power to control the entry and removal

of aliens is “vested solely in the Federal Government, rather than the

States.” 339 In DeCanas v. Bica, 340 the Supreme Court declared—in

unmistakable terms—that the “[p]ower to regulate immigration is

unquestionably exclusively a federal power.” 341 The Court further explained

that the “comprehensiveness of legislation governing entry and stay of aliens

_____________________

335

See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305, 310 (1988); Exxon Corp.

v. Eagerton, 462 U.S. 176, 184, 187 (1983).

336

See Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 636 (2012); Napier v. Atl.

Coast Line R. Co., 272 U.S. 605, 613 (1926).

337

Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) (“The power

to regulate immigration—an attribute of sovereignty essential to the preservation of any

nation—has been entrusted by the Constitution to the political branches of the Federal

Government.”).

338

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

339

Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976); see also supra note 301

and accompanying text.

340

424 U.S. 351 (1976).

341

Id. at 354.

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was to be expected in light of the nature and complexity of the subject.” 342

In light of this caselaw, Texas cannot step into the shoes of the national

sovereign under our Constitution and federal laws. If every state could

regulate the unlawful entry, reentry, and removal of aliens, “[e]ach additional

statute [would] incrementally diminish[] the [federal government]’s control

over enforcement” and “detract[] from the ‘integrated scheme of

regulation’ created by Congress.” 343

The dissenting opinion, citing a law review article and a quote from an

1837 case, retorts that states regulated immigration in the nineteenth century

as part of their police powers until Congress began to legislate on immigration

in 1875. 344 Even assuming that the dissenting opinion’s historical assertions

are true, they do not control because a preemption analysis can change upon

the introduction of new federal legislation. In Arizona, the Court explained

that “[w]hen there was no comprehensive federal program regulating the

employment of unauthorized aliens, this Court found that a State had

authority to pass its own laws on the subject,” but “[c]urrent federal law is

substantially different from the [previous] regime” because “Congress

enacted IRCA as a comprehensive framework for ‘combating the

_____________________

342

Id. at 359 (emphasis added). The Court also noted that federal immigration law

controls “who should or should not be admitted into the country, and the conditions under

which a legal entrant may remain.” Id. at 355; cf. Truax v. Raich, 239 U.S. 33, 42 (1915)

(“The authority to control immigration—to admit or exclude aliens—is vested solely in

the Federal government.”).

343

Wis. Dep’t of Indus., Lab. & Hum. Rels. v. Gould Inc., 475 U.S. 282, 288-89

(1986).

344

Post at 150 (citing Mayor of New York v. Miln, 36 U.S. 102, 132-33 (1837); Gerald

L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L.

Rev. 1833, 1846-59 (1993)).

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employment of illegal aliens.’” 345 Therefore, a portion of Arizona S. B. 1070

barring unauthorized aliens for working or seeking employment in Arizona

was preempted by IRCA. 346

Director Martin makes three counterarguments. First, he argues that

“state laws that ‘mirror[] federal objectives’ are more—not less—likely to be

upheld.” 347 The Supreme Court, however, rejected this exact argument in

Arizona, stating it “ignores the basic premise of field preemption—that

States may not enter, in any respect, an area the Federal Government has

reserved for itself.” 348 In fact, the resemblance between S. B. 4’s provisions

and the federal provisions criminalizing illegal entry and reentry—§§ 1325(a)

and 1326(a)—make the Court’s analysis in Arizona particularly salient. In

the same way Arizona S. B. 1070 “add[ed] a state-law penalty for conduct

proscribed by federal law,” 349 S. B. 4 criminalizes behavior already

prohibited by the INA.

The Supreme Court in Arizona explained why § 3 was field preempted

despite its apparent congruence with federal law. The Court relied on the

fact that “[w]ere § 3 to come into force, the State would have the power to

bring criminal charges against individuals for violating a federal law even in

circumstances where federal officials in charge of the comprehensive scheme

determine[d] that prosecution would frustrate federal policies.” 350 The

_____________________

345

Arizona v. United States, 567 U.S. 387, 404 (2012) (quoting Hoffman Plastic

Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)).

346

Id. at 403-07.

347

See Plyler v. Doe, 457 U.S. 202, 225 (1982).

348

Arizona, 567 U.S. at 402.

349

Id. at 400.

350

Id. at 402.

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Supreme Court explained that “[p]ermitting the State to impose its own

penalties for the federal offenses here would conflict with the careful

framework Congress adopted.” 351 This logic applies with equal force to the

Texas laws regarding entry and removal.

Second, Director Martin cites several federal statutes that he

contends reflect that federal immigration law regularly encourages States to

aid in federal entry and removal. The Director cites 18 U.S.C. § 758 for the

proposition that it is a crime for an alien to “flee” from “State[] or local law

enforcement” around immigration checkpoints. But that federal statute

makes it a federal crime when someone “flees Federal, State, or local law

enforcement agents in excess of the legal speed limit.” 352 This statute would

not prohibit Texas from arresting or prosecuting a person for violating state-

established speed limits under state law. Indeed, a federal statute provides

that state law extends over immigration stations and that officers in charge of

immigration stations shall admit “State and local officers charged with the

enforcement of the laws of the State or Territory . . . in order that such State

and local officers may preserve the peace and make arrests for crimes under

the laws of the States and Territories.” 353 But it does not authorize Texas to

(1) enact a statute making it a state crime to flee a checkpoint or (2) arrest or

prosecute anyone under § 758. Most importantly, this statute does not

pertain to whether someone should be allowed to enter or remain in the

United States or whether they should be deported or removed if they enter

illegally.

_____________________

351

Id.

352

18 U.S.C. § 758.

353

8 U.S.C. § 1358.

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Director Martin points to 8 U.S.C. § 1324(c), arguing that “States

may make arrests for violation[s] of alien smuggling prohibition[s].” But,

here again, this statute has nothing to do with whether an alien should be

prosecuted or removed for being in the United States illegally. Rather, this

statute makes it a crime for anyone, whether they are an alien, a United States

citizen, or a person lawfully in the United States, to engage in smuggling

aliens into the United States or harboring or transporting them. 354

The Director argues that 22 U.S.C. § 7105(c)(3)(C)(i), 8 U.S.C.

§ 1101(a)(15)(T)(i), and 8 U.S.C. § 1101(a)(15)(U) contemplate state

prosecution or investigation of illegal trafficking. But, here again, these

statutes do not authorize Texas to determine whether a person is illegally

present in the United States in order to take action to remove or deport her.

Director Martin fails to explain how these laws are relevant to the

entry or removal provisions. While Texas undoubtedly can assist the federal

government in arresting aliens who violate federal law when federal law

permits it to do so, 355 the question is not whether Congress intended to

occupy the entire field of immigration. 356 The laws cited by Director Martin

do not facilitate the inquiry pertinent in the present case, which is whether

Congress intended to occupy the field of immigration policies concerning

entry into or removal from the United States.

Third, Director Martin maintains the federal government has

“abandoned” the field because the Executive Branch has failed to enforce

_____________________

354

Id. § 1324(a).

355

See, e.g., id. § 1357(g) (allowing a state to enter into an agreement with the

federal government to aid in “the investigation, apprehension, or detention” of aliens).

356

See City of El Cenizo v. Texas, 890 F.3d 164, 177-78 (5th Cir. 2018) (first citing

Arizona, 567 U.S. at 400-01; and then citing DeCanas v. Bica, 424 U.S. 351, 360 n.8 (1976)).

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immigration policy in dereliction of its statutory duties. Regardless of

whether these claims are accurate, our task is to determine whether Congress

“‘legislated so comprehensively’ in a particular field that it ‘left no room for

supplementary state legislation.’” 357 “Evidence of pre-emptive purpose is

sought in the text and structure of the statute at issue,” not enforcement

decisions by the Executive. 358 Here, there is strong support for the

conclusion that Congress has “legislated so comprehensively” in the field of

alien entry and removal that it “left no room for supplementary state

legislation.” 359

2

Las Americas has shown that it is likely to prevail on its argument that

certain provisions of S. B. 4 are conflict preempted. Generally speaking, the

Supreme Court has recognized that a state statute may be preempted by

_____________________

357

Kansas v. Garcia, 589 U.S. 191, 208 (2020) (quoting R.J. Reynolds Tobacco Co. v.

Durham County, 479 U.S. 130, 140 (1986)). Texas references Parker v. Brown, 317 U.S. 341,

358 (1943), for the proposition that the mere adoption of an act by Congress, without

executive action putting the legislation into effect, does not implicate field preemption.

However, Parker is distinguishable for two reasons. First, Parker did not involve the

Executive Branch allegedly abandoning a field but rather related to a congressional act (the

federal Agricultural Marketing Agreement Act of 1937). Id. at 352-58. Second, the

Supreme Court held there was no field preemption because the Act specifically

“contemplate[d] the existence of state programs at least until such time as the Secretary

[of Agriculture] shall establish a federal marketing program.” Id. at 354. The Secretary

had not adopted implementing regulations, and the Court held there was no “occupation

of the legislative field” by the adoption of the Agricultural Marketing Agreement Act. Id.

at 358. In contrast, the intersecting web of national immigration laws does not contemplate

state regulation.

358

See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993); see also Va.

Uranium, Inc. v. Warren, 587 U.S. 761, 773 (2019) (Gorsuch, J., joined by Thomas

and Kavanaugh, JJ.) (lead opinion) (noting “Congress’s authority to delimit the

preemptive effect of its laws”).

359

Kansas, 589 U.S. at 208 (quoting R.J. Reynolds Tobacco Co., 479 U.S. at 140).

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federal law when (1) it is impossible for a person to comply with both the state

law and federal law, or (2) the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.” 360 The Court has described the relationship between these

concepts this way:

This Court, when describing conflict pre-emption, has spoken

of pre-empting state law that “under the circumstances of th[e]

particular case . . . stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of

Congress”—whether that “obstacle” goes by the name of

“conflicting; contrary to; . . . repugnance; difference;

irreconcilability; inconsistency; violation; curtailment; . . .

interference,” or the like. The Court has not previously driven

a legal wedge—only a terminological one—between

“conflicts” that prevent or frustrate the accomplishment of a

federal objective and “conflicts” that make it “impossible” for

private parties to comply with both state and federal law.

Rather, it has said that both forms of conflicting state law are

“nullified” by the Supremacy Clause . . . . 361

_____________________

360

See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000) (quoting

Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

361

Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (alterations and

omissions in original) (citations omitted) (first quoting Hines, 312 U.S. at 67; then citing

Jones v. Rath Packing Co., 430 U.S. 519, 526 (1977); then citing Fid. Fed. Sav. & Loan Ass’n

v. de la Cuesta, 458 U.S. 141, 152-53 (1982); then citing United States v. Locke, 529 U.S. 89,

109 (2000); and then citing Eng. v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990)); see also

Arizona, 567 U.S. at 399-400; Hines, 312 U.S. at 67 (“In the final analysis, there can be no

one crystal clear distinctly marked formula. Our primary function is to determine whether,

under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to

the accomplishment and execution of the full purposes and objectives of Congress.” (citing

Savage v. Jones, 225 U.S. 501, 533 (1912))).

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Arizona, which we have already discussed, employed an “obstacle” analysis

to assess whether state laws related to immigration were preempted. 362 So

did Hines v. Davidowitz, 363 another similar case. 364 We take that approach,

too.

The Texas entry provisions make it unlawful for an alien to enter or

reenter the state from a location other than a port of entry. 365 Director Martin

contends that these provisions mirror federal-law standards, with S. B. 4

“adopt[ing]” federal law. It is true that the “mere fact” that a state law

“overlap[s]” with a federal criminal provision does not, by itself, make a case

for conflict preemption. 366 But Las Americas has done much more than

merely identify that S. B. 4 overlaps with its federal criminal analogues—

indeed, conflicts abound between S. B. 4 and a number of federal laws.

To begin, S. B. 4 affects aliens whom Congress has assigned a federal

immigration status—that of an “applicant for admission” 367—and interferes

with federal immigration officials’ ability to determine the applicant’s

admissibility. The relevant statute provides: “An alien present in the United

States who has not been admitted or who arrives in the United States

(whether or not at a designated port of arrival . . . ) shall be deemed for

purposes of this chapter an applicant for admission.” 368 Congress directed

that all applicants for admission “shall” be inspected by a federal

_____________________

362

Arizona, 567 U.S. at 410.

363

312 U.S. 52 (1941).

364

Id. at 67.

365

Tex. Penal Code §§ 51.02-03.

366

Kansas v. Garcia, 589 U.S. 191, 211 (2020).

367

8 U.S.C. § 1225(a)(1).

368

Id.

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immigration officer. 369 We described this process in more detail above and

we summarize it again here. First, the immigration officer must determine

the alien’s admissibility, a status defined in part by statute and in part by a

designation from the Secretary of Homeland Security. 370 Second, if the

immigration officer determines that an alien who is “arriving in the United

States” or is present but has “not been admitted or paroled” may be

inadmissible, the officer must then decide whether the alien is inadmissible

under two specified statutory provisions. 371 Aliens deemed inadmissible

under those specific statutory provisions are generally subject to expedited

removal unless they indicate an intention to apply for asylum. 372 Aliens who

are not subject to expedited removal (and who are not “clearly and beyond a

doubt entitled to be admitted”) are detained for further proceedings before

an immigration judge, who “shall” determine whether the alien is in fact

inadmissible. 373

In light of this process, it is problematic that state courts will

determine if an alien has entered illegally and order their removal. In Villas

at Parkside Partners v. City of Farmers Branch, 374 a majority of our en banc

_____________________

369

Id. § 1225(a)(3).

370

Id. § 1225(b)(1)(A), (b)(2)(A); see DHS v. Thuraissigiam, 591 U.S. 103, 108-09

& n.3 (2020).

371

8 U.S.C. § 1225(b)(1)(A)(i) (directing the federal immigration officer to

determine whether the alien is inadmissible under either 8 U.S.C. § 1182(a)(6)(C) or

(a)(7)); id. § 1182(a)(6)(C) (designating as inadmissible aliens who, by fraud or willfully

misrepresenting a material fact, procure or seek to procure an immigration document or

other immigration benefit); id. § 1182(a)(7) (designating as inadmissible aliens who did not

have a valid entry document at the time they applied for admission).

372

Id. § 1225(b)(1)(A)(i)-(ii); see Thuraissigiam, 591 U.S. at 108-09.

373

8 U.S.C. §§ 1225(b)(2)(A), 1229a(a)(1).

374

726 F.3d 524 (5th Cir. 2013) (en banc).

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court concluded that state courts may not assess the legality of an alien’s

presence. 375 There, the ordinance at issue allowed for state judicial review as

to whether an individual was lawfully present in the country. 376 The lead

opinion conclud

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