noting “law-enforcement discretion” exists “even in the presence of seemingly mandatory legislative commands”
How later courts described this case
- noting “law-enforcement discretion” exists “even in the presence of seemingly mandatory legislative commands”
- 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
- explaining that to bring a suit for non-statutory injunctive relief, 11 plaintiffs must show “an interference with some legal right of theirs”
- “How much of a ‘connection’ has been hard to pin down, though.”
Written by the judges who cited it.
The opinion
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.
______________________________
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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.
15
No. 24-50149
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
No. 24-50149
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
No. 24-50149
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.
18
No. 24-50149
“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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No. 24-50149
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)).
20
No. 24-50149
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.”).
21
No. 24-50149
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).
22
No. 24-50149
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.
23
No. 24-50149
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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No. 24-50149
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.
25
No. 24-50149
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).
26
No. 24-50149
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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No. 24-50149
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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No. 24-50149
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.
29
No. 24-50149
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,
30
No. 24-50149
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).
31
No. 24-50149
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).
32
No. 24-50149
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.
33
No. 24-50149
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.
34
No. 24-50149
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).
35
No. 24-50149
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.
36
No. 24-50149
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).
37
No. 24-50149
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)).
38
No. 24-50149
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)).
39
No. 24-50149
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))).
40
No. 24-50149
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.
41
No. 24-50149
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.
42
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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.
43
No. 24-50149
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.
44
No. 24-50149
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).
46
No. 24-50149
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).
47
No. 24-50149
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.
48
No. 24-50149
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).
49
No. 24-50149
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.
50
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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).
51
No. 24-50149
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 concluded that because of “the discretion and variability inherent in
a determination of whether an alien is ‘lawfully present in the United
States.’ . . . the judicial review section of the Ordinance [] is preempted by
federal law.” 377
The Texas law regarding entry grants Texas judges significantly more
power than the ordinance at issue in Farmers Branch. 378 It allows Texas
courts to impose criminal sanctions and order removal if an alien is found to
have entered or remained in Texas illegally. 379 As some jurists have
recognized, “[T]he structure of the [federal] immigration statutes makes it
impossible for [a] State to determine which aliens are entitled to residence,
and which eventually will be deported.” 380
_____________________
375
Although there was no majority opinion in Farmers Branch, ten judges agreed
that the judicial review sections of the city ordinance at issue were preempted in part by
federal law. See id. at 537 (Higginson, J., joined by Stewart, C.J., and Davis,
Southwick, and Haynes, JJ.) (lead opinion); id. at 542-43 (Reavley, J., joined by
Graves, J., concurring in the judgment); id. at 547 (Dennis, J., joined by Reavley,
Prado, and Graves, JJ., specially concurring); id. at 559 (Richman, J., concurring
in part and dissenting in part).
376
Id. at 536 (lead opinion).
377
Id. at 537 (citing 8 U.S.C. § 1229a(a)(3)).
378
In Farmers Branch, the ordinance indicated that an alien’s unlawful presence
was to be “determined under federal law.” Id. at 536. S. B. 4 goes further, allowing state
judges to determine an alien’s unlawful presence under state law. See, e.g., Tex. Penal
Code § 51.03(c).
379
See, e.g., Tex. Code Crim. Proc. art. 5B.002(d).
380
Plyler v. Doe, 457 U.S. 202, 236 (1982) (Blackmun, J., concurring); id. at 241
n.6 (Powell, J., concurring).
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The Texas entry and removal provisions also conflict with federal law
because they prohibit abatement of prosecutions under Chapter 51 of the
Penal Code on the grounds that federal proceedings have been or will be
commenced regarding the immigration status of the defendant. S. B. 4
amended the Texas Code of Criminal Procedure to add article 5B.003. It
provides:
Art. 5B.003. Abatement of Prosecution on Basis of
Immigration Status Determination Prohibited
A court may not abate the prosecution of an offense under
Chapter 51, Penal Code, on the basis that a federal
determination regarding the immigration status of the
defendant is pending or will be initiated. 381
S. B. 4 then requires a court convicting a defendant of a Chapter 51
offense to order the removal of the defendant. 382 But federal law provides
that an alien may be permitted to remain in the United States lawfully even if
they have been convicted of illegal entry. 383 It would therefore conflict with
federal law to remove an alien before (1) the federal government has decided
whether that alien is permitted to remain in the United States because asylum
should be granted, (2) the federal government has decided whether a CAT
claim is valid, or (3) the United States Attorney General has decided whether
to exercise discretion to waive obstacles to removal and admit the alien. 384
The removal provision appears to create another conflict by
authorizing Texas state judges and magistrate judges to remove aliens from
_____________________
381
Tex. Code Crim. Proc. art. 5B.003.
382
Id. art. 5B.002(d).
383
See supra notes 288-91 and accompanying text.
384
See supra notes 291-95 and accompanying text.
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the United States without notice to or consent from the federal
government. 385 This runs headlong into federal law. Congress has identified
the grounds for removal, the requirements for commencing and
administering removal proceedings, the protections afforded to aliens
throughout removal proceedings, and the process for selecting the country to
which aliens may be removed. 386 A “principal feature” of this complex
removal system is the “broad discretion” exercised by federal immigration
officials.387 Contrast this discretion with the S. B. 4 removal provision’s
grant to Texas judges of the unilateral power to order aliens removed. The
removal provision sidesteps the sensitive issues that federal immigration
officers are to consider. 388
The Texas removal provisions will significantly conflict with the
United States’ authority to select the country to which aliens will be
removed. Many aliens who cross into Texas from Mexico are not citizens or
_____________________
385
See Tex. Code Crim. Proc. art. 5B.002.
386
See, e.g., 8 U.S.C. §§ 1182(a), 1225, 1227, 1229, 1229a, 1231(a)-(b).
387
Arizona v. United States, 567 U.S. 387, 396 (2012).
388
Cf., e.g., Plyler v. Doe, 457 U.S. 202, 241 n.6 (1982) (Powell, J., concurring)
(“But it is impossible for a State to determine which aliens the Federal Government will
eventually deport, which the Federal Government will permit to stay, and which the
Federal Government will ultimately naturalize. Until an undocumented alien is ordered
deported by the Federal Government, no State can be assured that the alien will not be
found to have a federal permission to reside in the country, perhaps even as a citizen.
Indeed, even the Immigration and Naturalization Service cannot predict with certainty
whether any individual alien has a right to reside in the country until deportation
proceedings have run their course.”).
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residents of Mexico. 389 Nevertheless, S. B. 4 would require removing them
to Mexico. 390 The United States would have no say in the matter.
Furthermore, the Supreme Court has cautioned that “conflict is
imminent” when “two separate remedies are brought to bear on the same
activity.” 391 The remedies available under S. B. 4 are not congruent with
federal remedies. 392
The INA provides the federal government discretion to decide
whether to initiate criminal proceedings or civil immigration proceedings
once an alien is apprehended. The Texas scheme blocks this exercise of
discretion. An alien apprehended illegally entering or remaining in Texas is
charged with a crime punished by removal, and the federal government has
no voice in further proceedings. To the extent that state law affords
prosecutorial discretion, it vests that discretion in a state official, not the
United States Attorney General or another federal
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