United States v. State of Texas

Case: 24-50149 Document: 441-1 Page: 1 Date Filed: 04/24/2026

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

April 24, 2026

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,

Defendants—Appellants.

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______________________________

Appeal from the United States District Court

for the Western District of Texas

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

______________________________

Before Elrod, Chief Judge, and Jones, Smith, Stewart,

Richman, Southwick, Haynes, Graves, Higginson,

Willett, Ho, Duncan, Engelhardt, Oldham, Wilson,

Douglas, and Ramirez, Circuit Judges.

Jerry E. Smith, Circuit Judge, joined by Elrod, Chief Judge, and

Jones, Haynes, Willett, Ho, Duncan, Engelhardt,

Oldham, and Wilson, Circuit Judges.

“Courts sometimes make standing law more complicated than it

needs to be.” Bost v. Ill. State Bd. of Elections, 146 S. Ct. 513, 523 (2026)

(Roberts, C.J.) (citation omitted). “[P]laintiffs must have a ‘personal

stake’ in a case to have standing to sue.” Id. at 519 (citing FDA v. All. for

Hippocratic Med., 602 U.S. 367, 379 (2024)). “Plaintiffs cannot ‘manufacture

standing by voluntarily’ incurring costs.” Id. at 522 (citation omitted).

That should be the end of this matter: These Plaintiffs voluntarily

incurred costs to advocate for clients. Under recent Supreme Court prece-

dent, that falls far short of conferring standing. We vacate the preliminary

injunction to the contrary.

* * * * *

This case concerns whether the State of Texas, exercising its historic,

sovereign police powers, can legislatively protect its citizens from a surge of

illegal aliens in response to an unprecedented border crisis and a declared

invasion. The district court judge and a divided panel held that it cannot.

Because the Plaintiffs that are challenging the new statute lack standing, we

vacate the preliminary injunction without addressing the merits of the pre-

emption claim.

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I. Facts

A. The Backdrop

In 2023, Texas enacted Senate Bill 4 (“S.B. 4”) in response to wide-

spread illegal, disruptive immigration into the State. The jarring statistics of

the human toll are as follows: More than 6 million illegal aliens, from over

100 countries, flooded Texas’s international border during approximately

2021–2023. 1 In one year alone, about 2.5 million unlawfully crossed, well

over 100,000 of whom were unaccompanied minors. 2 And in a three-year

period, Border Patrol agents arrested over 15,000 illegal aliens with criminal

convictions, apprehended roughly 2,000 gang members, and encountered, at

the border, 336 persons on the terrorist watchlist. 3 There, violent transna-

tional cartels became paramilitary forces, whose illicit conduct ranged from

pumping “illegal drugs like fentanyl” into the United States to “trafficking

humans,” all to the tune of billions of dollars. 4

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1

ROA.283 (noting that “more than 6 million illegal immigrants from more than

100 countries have crossed the U.S. southern border”).

2

ROA.283 (“CBP data reflects that unlawful crossings of the Southwest border in

Fiscal Year 2023 reached a record high of 2,475,699, and that number does not include

known or unknown ‘gotaways.’”); ROA.284 (“That [DHHS] data reflects that the num-

ber of unaccompanied minors the department has cared for over the course of a year has

skyrocketed from 15,381 in FY 2020 to 118,938 in FY 2023.”).

3

ROA.285 (“The data reflects that in FY 2023, Border Patrol agents arrested

15,267 illegal immigrants with criminal convictions in the United States, a record high.”);

ROA.285 (“Border Patrol reported that it apprehended 1,819 illegal immigrants with gang

affiliations from FY 2021 to FY 2024.”); ROA.285 (“In addition, Border Patrol has

encountered 336 persons on the terrorist watchlist from FY 2021 to FY 2024 at the

southern border.”).

4

Texas v. DHS, 123 F.4th 186, 193 (5th Cir. 2024); Miriam Jordan, Smuggling

Migrants at the Border Now a Billion-Dollar Business, N.Y. Times (July 25, 2022),

https://tinyurl.com/487kykkh; William P. Barr, The U.S. Must Defeat Mexico’s Drug

Cartels, Wall St. J. (Mar. 2, 2023), https://tinyurl.com/drxcdnmv.

3

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B. Texas Enacts S.B. 4

S.B. 4 amends the Texas Penal Code to include two state offenses that

track federal immigration crimes prohibiting unlawful entry and reentry:

8 U.S.C. §§ 1325(a) and 1326(a). At issue are S.B. 4’s three operative

provisions.

The first offense criminalizes the entry of aliens into the United States

if they cross into Texas other than at a lawful port of entry. Tex. Penal

Code § 51.02(a). This language tracks federal law. 5 The statute includes

affirmative defenses to prosecution, 6 all of which defer to federal determina-

tions of admissibility.

The second offense prohibits an alien from “enter[ing], attempt[ing]

to enter,” or being “found in,” the State after he “(1) has been denied admis-

sion 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.” Tex. Penal Code § 51.03(a). This language

also tracks federal law. 7

The third operative provision establishes the removal procedures for

_____________________

5

See 8 U.S.C. § 1325(a) (prohibiting “enter[ing] or attempt[ing] to enter the

United States at any time or place other than as designated by immigration officers”).

6

The affirmative defenses include when (1)(A) the federal government has granted

the defendant lawful presence in the United States; (1)(B) the federal government has

granted the defendant asylum under 8 U.S.C. § 1158; (2) the defendant’s conduct does not

constitute a violation of 8 U.S.C. § 1325(a); and (3) the defendant “was approved for

benefits under” the DACA program between certain dates. Tex. Penal Code

§ 51.02(c).

7

See 8 U.S.C. § 1326(a) (prohibiting “enter[ing], attempt[ing] to enter, or [being]

at any time found in, the United States” after an alien “has been denied admission,

excluded, deported, or removed or has departed the United States while an order of exclu-

sion, deportation, or removal is outstanding”).

4

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violations of Texas Penal Code §§ 51.02 and 51.03. If an alien charged

with either of the two offenses agrees to an order to return, a judge may dis-

miss the charge and enter an order “requir[ing] the person to return to the

foreign nation from which the person entered or attempted to enter.” Tex.

Code Crim. Proc. art. 5B.002.

The parties dispute how return orders will be enforced. 8 State

officials have consistently represented that they will coordinate with federal

immigration authorities if aliens have return orders or pending asylum

applications.

C. Plaintiffs Sue

Before S.B. 4 took effect, Las Americas Immigrant Advocacy Center

and American Gateways (herein “Nonprofit Plaintiffs”) and El Paso County

sued, seeking (1) a declaration that S.B. 4 is unlawful in its entirety and (2) a

pre-enforcement facial injunction prohibiting S.B. 4’s application to anyone

under any circumstances. 9 The Plaintiffs averred that S.B. 4 is preempted by

the Immigration and Nationality Act. Nonprofit Plaintiffs are organizations

that provide legal services to aliens and allege that S.B. 4’s enforcement will

_____________________

8

Plaintiffs allege that a return order requires state officials to ensure that the alien

leaves the country. Texas contends that a return order does not itself remove anyone but

merely requires that a state official transport the alien to a port of entry. See Tex. Code

Crim. Proc. art. 5B002(e)(1)–(2). Because this case arrives as a pre-enforcement chal-

lenge, no state court has interpreted the removal (or any) provision. The pre-enforcement

challenge comes at a cost: Since “[t]here is a basic uncertainty about what the law means

and how it will be enforced . . . it would be inappropriate to assume [S.B. 4] will be construed

in a way that creates conflict with federal law.” Arizona v. United States, 567 U.S. 387, 415

(2012).

9

The United States filed a separate suit. Though the cases were consolidated, the

United States voluntarily dismissed its complaint without prejudice in March 2025, which

was before the divided panel issued its decision. Its appeal is therefore moot, and we need

not address its standing.

5

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“frustrate [their] mission[s]” and “require [them] to restructure [their] ser-

vices,” causing them “to divert resources away from those [they] currently

serve[] in the community.” El Paso County alleges that S.B. 4’s enforcement

will “dilut[e] the trust the El Paso Community has in its local government”

and will cause it to incur costs, including building jail space and hiring addi-

tional officers.

D. Procedural History

The district court issued a preliminary injunction against S.B. 4’s en-

forcement and concluded that S.B. 4 is likely preempted by federal immi-

gration law 10 and that the other preliminary injunction factors were satisfied.

United States v. Texas, 719 F. Supp. 3d 640 (W.D. Tex. 2024). The court

credited Plaintiffs’ standing theories based on alleged frustration of the

organizations’ purposes, resource diversions, and increased expenditures.

Id. at 655–61. Texas appealed, whereupon a divided administrative panel

denied a stay pending appeal. United States v. Texas, 97 F.4th 268, 272 (5th

Cir. 2024). A week later, the merits panel heard oral argument.

Before the merits panel had rendered its decision, the Supreme Court

decided FDA v. Alliance for Hippocratic Medicine (“Alliance”), 602 U.S. 367

(2024), which narrowed organizational standing and rejected the diversion-

of-resources theory upon which Nonprofit Plaintiffs and El Paso County had

relied. The President, after taking office in January 2025, issued an executive

order recognizing that “the current situation at the southern border qualifies

as an invasion.” Proclamation 10888 (Jan. 20, 2025). In March 2025, the

United States dismissed its claims and withdrew from the suit.

In July 2025, the panel majority à quo, in a comprehensive and impres-

_____________________

10

Because we hold that there is no standing, it is unnecessary to explain or opine

on preemption.

6

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sive opinion, affirmed the preliminary injunction over Judge Oldham’s

compelling dissent. 144 F.4th 632 (5th Cir. 2025). Like the Plaintiffs, the

majority placed heavy reliance on Havens Realty Corp. v. Coleman, 455 U.S.

363 (1982), concluding that it “strongly signals that Las Americas has dem-

onstrated injury and has standing.” 144 F.4th at 643. The court voted to

rehear the case en banc, thus vacating the panel opinion. 150 F.4th 656 (5th

Cir. 2025) (per curiam).

I. Standing

The issue is whether Plaintiffs have standing to challenge S.B. 4 under

Alliance. The answer is no. And the reason is evident: Plaintiffs have not

suffered a cognizable Article III injury.

S.B. 4 is enforceable only against aliens illegally present in Texas, not

against advocacy organizations or Texas counties. Because Plaintiffs chal-

lenge an alleged “unlawful regulation of someone else,” standing is “sub-

stantially more difficult” to establish. Alliance, 602 U.S. at 382 (citation

modified); Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992). Each of

Plaintiffs’ theories of standing is fatally flawed.

A. Nonprofit Plaintiffs Do Not Have Organizational Standing

1. Voluntary Resource Diversion

Nonprofit Plaintiffs, which are organizations that provide legal ser-

vices to aliens, claim that S.B. 4’s enforcement will “frustrate [their] mis-

sion[s]” and “require [them] to restructure [their] services,” causing them

“to divert resources away from those [they] currently serve[ ] in the com-

munity,” even if those injuries are “willingly incurred.” The Court repu-

diated such theories in Alliance, rejecting the proposition that “standing

exists when an organization diverts its resources in response to a defendant’s

actions.” Alliance, 602 U.S. at 395; see also id. at 394 (noting that the argu-

7

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ment that the government has “‘impaired [organizations’] ability to provide

services and achieve their organizational missions’ . . . does not work to dem-

onstrate standing”).

Because an organization cannot “spend its way into standing” or

“manufacture its own standing,” Nonprofit Plaintiffs’ claim that they spent

money “countering the effects of S.B. 4 consistent with the organizations’

missions” does not fare any better. See id. at 394–95 (“[T]hat theory would

mean that all the organizations in America would have standing to challenge

almost every federal policy that they dislike, provided they spend a single

dollar opposing those policies.”). That Nonprofit Plaintiffs are ideologically

opposed to S.B. 4 does not demonstrate standing either. See id. at 394 (“[A]n

organization may not establish standing simply based on the ‘intensity of the

litigant’s interest’ or because of strong opposition to the government’s con-

duct[.]” (quoting Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 486 (1982))). Nor because of “the fervor

of [its] advocacy.” Valley Forge, 454 U.S. at 486. These Plaintiffs cannot

escape the fundamental precept that where there is no injury, there is no

standing.

2. Performing Ordinary Legal Work

Nonprofit Plaintiffs’ scheme to invent Article III standing based on

their “core activities” of providing ordinary legal representation does not

save the day. This makes intuitive sense for at least two reasons.

a.

At its base, standing here turns on the interplay between Havens and

Alliance. Like the Plaintiffs, the panel majority rightly pointed to Havens,

noting that Havens upheld the standing of an organization that brought suit

“in its own right” to enjoin unlawful practices that “had frustrated the

organization’s counseling and referral services, with a consequent drain on

8

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resources.” 144 F.4th at 643. From that, the majority surmised that

“[i]mplementation of S.B. 4 would cause a concrete injury to Las Americas’s

provision of legal services to immigrants.” Id.

Enter Alliance, which the Supreme Court announced 42 years after

Havens and a year before the instant panel opinion. The Nonprofit Plaintiffs

claim that Alliance reinforces Havens; the State maintains that Alliance, while

not explicitly overruling Havens, substantially narrowed its application,

depriving these Plaintiffs of standing. The well-intentioned panel majority

sided with the Plaintiffs, concluding that Alliance “reinforces, rather than

undermines, our conclusion that Las Americas has likely established stand-

ing.” Id. at 648. To its credit, however, the panel majority candidly acknowl-

edged the strict limitation that the Alliance Court placed on Havens:

“Although Havens Realty ‘was an unusual case,’ and the Supreme Court ‘has

been careful not to extend the Havens holding beyond its context,’ it is not a

dead letter, as Alliance . . . confirms.” Id. at 651 (quoting Alliance, 602 U.S.

at 396).

Dissenting on the panel, Judge Oldham carefully explained why,

under its peculiar facts, there was standing in Havens: “In Havens, the defen-

dant told falsehoods to the plaintiff [, which] thus suffered a real, concrete and

particularized injury, caused by the defendant . . . .” Id. at 698. By way of

contrast, “S.B. 4 says nothing about Las Americas or any of the services it

wants to provide. That makes Las Americas a complete stranger to the stat-

ute and its enforcement.” Id.

In urging a narrow view of Havens in the wake of Alliance, the State

has the better of the debate. In Alliance, the Court unanimously rejected the

notion that plaintiffs could “spend [their] way into standing.” Alliance,

602 U.S. at 394. And this court long ago rejected the creative notion that a

legal-advocacy organization has standing because of its mandate “to protect

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and advocate the rights of . . . individuals,” including “to provide [them] with

legal representation.” Ass’n for Retarded Citizens of Dall. v. Dallas Cnty.

Mental Health & Mental Retardation Ctr. Bd. of Trs., 19 F.3d 241, 244 (5th Cir.

1994).

The Nonprofit Plaintiffs ignore Article III’s requirement that the

“plaintiffs have a ‘personal stake’ in the alleged dispute.” Raines v. Byrd,

521 U.S. 811, 819 (1997) (citation modified). In other words, Nonprofit Plain-

tiffs must be able sufficiently to answer the question: “What’s it to you?”

Bost, 146 S. Ct. at 519 (quoting Antonin Scalia, The Doctrine of Standing as an

Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881,

882 (1983)). Because they have no particularized answer to that question,

Nonprofit Plaintiffs have no standing.

b.

And second, if Nonprofit Plaintiffs were to have standing, any enter-

prising legal-advocacy organization could repackage a generalized grievance

as an “injury” to its “core business activities” and manufacture Article III

standing every time a new law or regulation goes into effect. As we quote

above, this court has already rejected such imaginative theories of standing.

See Ass’n for Retarded Citizens, 19 F.3d at 244 (rejecting the creative conten-

tion that a legal-advocacy organization has standing because of its mandate

“to protect and advocate the rights of . . . individuals,” including “to provide

[them] with legal representation”). And for good reason— “If this were not

so, then, for example, indigent defender organizations established pursuant

to the Criminal Justice Act or any other self-styled advocacy group could

assert standing to sue whenever it believed the rights of its targeted bene-

ficiaries had been violated.” See id. (noting that such a theory would allow

“any sincere plaintiff [to] bootstrap standing by expending its resources” or

to claim that “it believed the rights of its targeted beneficiaries had been

10

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violated”).

We say it again, to avoid any misunderstanding: A legal-services

organization cannot have Article III standing merely because a new law or

regulation requires it to understand the legal change, to adjust resources in

response, or to increase the degree or scope of legal representation for its

current or prospective clients who may be adversely affected.

B. El Paso County Does Not Have Standing

El Paso County’s standing theories fare no better. The County main-

tains that S.B. 4’s enforcement will “dilut[e] the trust the El Paso Commun-

ity has in its local government” and will cause it to incur costs, including

building jail space and hiring officers. Its theories are wrong for multiple

reasons.

For one, “eroding the public trust” is a non-cognizable reputational

harm without a “close historical or common law analogue” to an injury rec-

ognized by this court or the Supreme Court. See TransUnion LLC v. Ramirez,

594 U.S. 413, 424 (2021). El Paso County’s alleged reputational harm is

entirely subjective. After all, those opposed to the scourge of illegal immi-

gration may believe that public trust is undermined to a greater extent by the

unchecked influx of illegal aliens into the country compared to the faithful

enforcement of the Texas Legislature’s duly enacted law, S.B. 4. If El Paso

County has standing based on this alleged reputational harm, any political

subdivision could sue to challenge any state law, which flatly is not the case. 11

Second, El Paso County chose to bring a pre-enforcement challenge,

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11

See also Donelon v. La. Div. of Admin. Law ex rel. Wise, 522 F.3d 564, 567 n.6 (5th

Cir. 2008) (noting as a “general rule” that political subdivisions lack standing to sue a state

except in limited circumstances recognized in this circuit); see also, e.g., Coleman v. Miller,

307 U.S. 433, 441 (1939).

11

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which comes at a cost—any assumption about how the law will be enforced

is highly speculative. It is premature to assume that Texas will not reimburse

the County for any de minimis budgetary impact of “hous[ing] and process-

[ing]” illegal aliens detained under S.B. 4. It is conjectural to assume that

illegal aliens convicted under S.B. 4 will be detained in El Paso (and not State)

prisons for lengthy periods. It is suppositional to assume that illegal aliens

convicted under S.B. 4 won’t be punished with small fines in lieu of impris-

onment. It is speculative to assume that robust S.B. 4 enforcement will not

free up El Paso’s facilities by removing illegal aliens and deterring additional

border crossings. And there are many more reasons why El Paso County

lacks standing. 12

Like the Nonprofit Plaintiffs, El Paso County does not have standing

for one plain and obvious reason—“no injury” means “no standing.”

* * * * *

Federal courts have a solemn responsibility to apply neutral princi-

ples, such as standing, to the cases that come before them and must resist the

temptation to confer Article III standing any time an advocacy group or

political subdivision challenges a law it passionately dislikes. When enter-

prising plaintiffs repackage a generalized grievance as an “injury,” courts

should rightly exercise caution. Otherwise, they risk being led astray by

plaintiffs’ artful articulations or backhanded bootstrapping. Instead, courts

must enforce Article III’s limits and dismiss cases for want of jurisdiction in

the absence of standing.

The preliminary injunction is VACATED.

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12

See United States v. Texas, 144 F.4th at 702 n.6 (Oldham, J., dissenting) (citing

the plethora of reasons and opining that “[p]erhaps recognizing the weakness of these

theories, El Paso spares nary a word” from the panel majority).

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James C. Ho, Circuit Judge, concurring:

I agree that Plaintiffs lack standing to challenge S.B. 4, and thus concur

in vacating the preliminary injunction on that ground. The State of Texas

also presses a broader theory of relief, based on its power to engage in war in

response to an invasion. I agree with that theory as well, for the reasons that

I previously noted in United States v. Abbott, 110 F.4th 700, 725 (5th Cir.

2024) (Ho, J., concurring in the judgment in part and dissenting in part). In

sum, exercising the war power to defend against an invasion is a

quintessential judgment for chief executives, not federal judges.

My dissenting colleagues don’t just disagree on standing. They also

reject the State’s war power defense. I am compelled to respond accordingly.

I.

The President, not the judiciary, determines the existence of an

invasion. See id. at 726–30 (collecting authorities). That same logic applies

to the States under Article I, section 10 of the Constitution. See id. at 725

(citing U.S. Const. art. I, § 10, cl. 3). 1 And that should decide this appeal.

A.

Nations have long weaponized migration to harm other nations. See

id. at 734. Weaker countries can punch above their weight against stronger

military forces by using unconventional tactics like forced migration to

destabilize and disrupt their enemies. See id. (citing United States v. Abbott,

92 F.4th 570, 579 (5th Cir. 2024) (Ho, J., dissenting) (collecting sources)).

See also Aaron R. Petty, Migrants as a Weapons System, 13 J. Nat’l Sec. L.

_____________________

1

See also, e.g., John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev.

1639, 1661, 1666–67 (2002) (comparing text of Article I, section 10 to Commander in Chief

Clause of Article II, section 2); John Yoo & James C. Ho, Commander in Chief, in The

Heritage Guide to the Constitution 195–97 (1st ed. 2005) (same).

13

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& Pol’y 113, 114 (2022) (“The weaponization of migration has a long and

generally successful history of being employed by weaker powers to

significant effect against stronger ones.”).

These concerns date back to our Nation’s Founding. See, e.g., Abbott,

92 F.4th at 580 & n.4 (Ho, J., dissenting) (quoting James Madison).

Alexander Hamilton, for example, warned that “incorporating a large

number of foreigners” into the United States could “divide the

community . . . by promoting in different classes different predilections in

favor of particular foreign nations, and antipathies against others.” The

Examination Number VIII (Jan. 12, 1802), in 25 The Papers of

Alexander Hamilton, July 1800 – April 1802, 495–97 (Harold C.

Syrett ed. 1977). Hamilton noted that “their force may be actually employed

in assisting an invader.” Id. And he concluded that “admit[ting] foreigners

indiscriminately to the rights of citizens, the moment they put foot in our

country . . . would be nothing less, than to admit the Grecian Horse into the

Citadel of our Liberty and Sovereignty.” Id.

There are numerous examples of nations using mass migration to

harm other nations. See, e.g., Kelly M. Greenhill, Weapons of

Mass Migration: Forced Displacement, Coercion, and

Foreign Policy 262 (2010) (noting that “instrumental exploitation” of

migration “has a long and influential history that includes both war and

peacetime use”); id. (documenting “at least fifty-six attempted cases of

migration-driven coercion (or coercive engineered migration) between 1951

and 2006 alone—nearly three-quarters of which were at least partially

successful in achieving their stated goals”).

In 2015, for example, Russia “deliberately weaponize[d] migration

from Syria in an attempt to overwhelm European structures and break

European resolve.” Full Spectrum Security Challenges in Europe and Their

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Effects on Deterrence and Defense Before the H. Comm. on the Armed Services,

114th Cong. 4 (2016) (statement of General Philip M. Breedlove,

Commander, U.S. European Command).

More recently, the Russo-Ukrainian war has provided “the largest

and most dramatic case of weaponized migration.” Weaponized Mass

Migration: A Security Risk to Europe and the United States, Before the

Subcommittee on Europe of the H. Comm. on Foreign Affairs, 119th Cong. 5

(2026) (statement of Matt Boyse, Senior Fellow, Hudson Institute).

“Russian forces displaced over 6.5 million people, overwhelming EU energy

and food resources and placing countries in a state of chaos.” Id. at 2

(statement of Rear Admiral (Ret.) Mark Montgomery, Senior Director &

Fellow, Foundation for Defense of Democracies).

In sum, “Russia employs migration not as a foreign policy instrument,

but as a weapon of war.” Id. “Weaponized migration can impact alliance

readiness by forcing allies to divert military resources, stretch border

infrastructure, and create sustained operational pressures along critical

frontiers.” Id. at 7.

These and other historical examples should “put the nail in the coffin

of assertions that migrants and refugees do not represent a ‘real’ security

issue.” Greenhill, Weapons of Mass Migration 261. There is

broad consensus among national security scholars and experts that countries

deliberately weaponize mass migration to harm other countries just as much

as conventional arms. “[T]urning people into ‘demographic bombs’ has

been an attractive and relatively successful instrument of cross-domain

persuasion for those state and nonstate actors who are willing to employ it.”

Petty, Migrants as a Weapons System, at 130 (quoting Kelly M. Greenhill,

Asymmetric Advantage: Weaponizing People as Nonmilitary Instruments of

Cross-Domain Coercion, in Cross-Domain Deterrence: Strategy

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in an Era of Complexity 261 (Jon R. Lindsay & Erik Gartzke eds.,

2019)). Weaponized migration “may not necessarily be violent in the

traditional sense,” but it can nonetheless “inflict substantial and potentially

irreversible consequences,” making it “far closer to bombs and bullets than

to electronic jamming or dropping leaflets.” Id. at 134. Cf. Alan Dowty &

Gil Loescher, Refugee Flows as Grounds for International Action, 21 Int’l

Sec. 43, 50 (1996) (“When refugees are being used as a weapon, the target

state is within its rights in invoking the right of self-defense.”).

As the former Dean of Harvard Law School quipped over a quarter

century ago: “the nature of war [itself] has changed; now the refugees are the

war.” Greenhill, Weapons of Mass Migration 262 (quoting

comments of Professor Martha Minow, Harvard Law School, conference on

the 1999 Kosovo conflict, Brandeis University, Dec. 11, 2000).

B.

The use of migration as a weapon against other nations has only

increased over time. See, e.g., Kelly M. Greenhill, Strategic Engineered

Migration as a Weapon of War, 39 Suffolk Transnat’l L. Rev. 615,

636 (2016) (“[E]vidence suggests both the attractiveness of this weapon and

frequency of its use appear to be growing.”); Petty, Migrants as a Weapons

System, at 115 (“[T]he weaponization of migrants, i.e., the use of migrants as

a weapon system, is likely to increase against the United States.”);

Weaponized Mass Migration, 119th Cong. 1 (statement of Rear Admiral (Ret.)

Mark Montgomery) (“The effects of weaponized migration are only

compounding.”); id. at 3 (statement of Natalia Banulescu-Bogdan, Deputy

Director, Migration Policy Institute) (“The reach of weaponization is also

expanding.”).

And the United States has become one of the most popular targets of

these threats. See, e.g., Greenhill, Weapons of Mass Migration

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63 (“[T]he United States appears to have been the single most popular target

of migration-driven coercion between 1951 and 2006.”). For example,

“Russia’s military operations in Libya . . . enabled it to generate migration

flows towards Europe and even the United States (via Nicaragua) in what

numerous analysts have described as a destabilizing tactic.” Weaponized

Mass Migration, 119th Cong. 4 (statement of Natalia Banulescu-Bogdan).

The Nicaraguan government has facilitated charter flights to shuttle aliens

from Asia, Europe, and Africa into the United States. See Gus Contreras,

Justine Kenin & Mary Louise Kelly, How Nicaragua is weaponizing

immigration to the U.S., NPR (Jan. 4, 2024). Like Russia, Nicaragua’s

government acknowledged their inability to confront the United States using

conventional military tactics, so they instead employed “armed migration as

a way to attack.” Megan Janetsky, Nicaragua is ‘weaponizing’ US-bound

migrants as Haitians pour in on charter flights, observers say, AP (Oct. 24, 2023).

Similarly, “Mexico’s interest in mass migration results from its hopes

of reclaiming or reconquering . . . the territories it lost to us in the nineteenth

century.” Peter Schweizer, The Invisible Coup: How

American Elites and Foreign Powers Use Immigration as

a Weapon 199 (2026). The former President of the Mexican Senate, for

example, recently declared that “Los Angeles is migrant land,” and parts of

America are “occupied territories,” so Mexico should “once again demand

the recovery of these territories.” Id. at 12, 56. Other Mexican senior

officials have similarly stated that “our mission is to organize militancy

abroad.” Id. at 44 (quoting a former member of the Mexican Chamber of

Deputies). And Russia is actively encouraging Mexico in this regard. See,

e.g., Weaponized Mass Migration, 119th Cong. 4 (statement of Matt Boyse)

(“[I]n 2023, former FSB Director and Security Council Secretary Nikolai

Patrushev travelled to Cuba and Latin America and spoke approvingly of our

southern neighbors regaining control of territory in the Southwestern United

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States allegedly stolen from Mexico, describing the United States as ‘a

patchwork quilt that can easily come apart at the seams.’”).

C.

Not surprisingly, then, Presidential Administrations of both parties

have recognized that weaponized migration presents a serious threat to the

security of the United States. See, e.g., Exec. Order No. 14159, Protecting the

American People Against Invasion, 90 Fed. Reg. 8443 (Jan. 20, 2025); Vice

President JD Vance, Remarks at the Munich Security Conference (2025) (“[O]f

all the pressing challenges that the nations represented here face, I believe

there is nothing more urgent than mass migration.”); Secretary of State

Marco Rubio, Remarks at the Munich Security Conference (2026) (“Mass

migration . . . isn’t some fringe concern of little consequence. It was and

continues to be a crisis which is transforming and destabilizing societies all

across the West.”); The White House, Statement from President Joe

Biden on the Bipartisan Senate Border Security Negotiations (Jan. 26, 2024)

(describing the “border crisis” and calling for robust government action to

“shut down the border”); The White House, Report on the

Impact of Climate Change on Migration (Oct. 2021)

(“adversaries could incite or aid irregular migration to destabilize U.S.

allies/partners”); Franco Ordoñez, Authoritarians are Using Migrants as

Weapons. The White House Frets It’s on the Rise, NPR (Dec. 13, 2021) (“The

White House has become increasingly concerned about migration being used

as a weapon.”); Authority to Use Military Force in Libya, 35 Op. O.L.C. 20, 35

(2011) (President Obama justified military force in Libya due to concerns

about “large refugee movements,” noting that Libya’s “illegitimate use of

force was forcing many civilians to flee to neighboring countries, thereby

destabilizing the peace and security of the region.”) (cleaned up); id.

(President Clinton “justified extensive airstrikes” in Yugoslavia due to

“concerns about the threat to regional security” from “pushing refugees

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across borders.”); National Intelligence Council, Growing

Global Migration and Its Implications for the United

States 30 (Mar. 2001) (“The United States will remain vulnerable to

explicit or implicit threats by foreign governments to use illegal and especially

mass emigration as leverage in bilateral relations or to reduce political

pressures arising from domestic policy failures.”). And both Congress and a

majority of the Nation’s Governors have likewise recognized the threat. See

Abbott, 92 F.4th at 578 (Ho, J., dissenting) (collecting authorities).

The judiciary, by contrast, has “no business deciding which national

security threats are sufficiently serious to warrant a military response, and

which are not.” Abbott, 110 F.4th at 726 (Ho, J., concurring in the judgment

in part and dissenting in part). “Supreme Court precedent and longstanding

Executive Branch practice confirm that, when a President decides to use

military force, that’s a nonjusticiable political question not susceptible to

judicial reversal.” Id. See also id. at 726–30 (collecting authorities).

That principle readily applies here. Federal judges may not hamstring

the Executive’s evaluation and response to evolving threats just because they

don’t involve individuals in army fatigues. See, e.g., id. at 728 (“[N]umerous

officials have concluded that military action was warranted in response to

bands of Mexican criminals in the 19th century and terrorist attacks in the

20th and 21st centuries. Determining where the present illegal immigration

crisis falls along this spectrum is not a legal question for judges, but a political

determination for the other branches of government.”); John C. Yoo &

James C. Ho, The Status of Terrorists, 44 Va. J. Int’l L. 207, 211 (2003)

(“President Bush has found that the [9/11 terrorist] attacks have placed the

United States in a state of armed conflict. . . . [T]he President’s finding

settles the question whether the United States is at war,” and “[t]he judiciary

[is] bound by the President’s determination.”) (collecting cases).

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If anything, the fact that threats to national security are increasingly

“undertaken in non-traditional domains . . . where the strength of the rules-

based order is less fully developed” only further underscores that these

questions belong outside the judiciary. Petty, Migrants as a Weapons System,

at 118. “[I]t may be difficult to meaningfully distinguish where the conduct

in these domains becomes ‘militarized’ and how to distinguish such uses

from the use of non-military elements of national power in, for example, the

diplomatic or economic domains.” Id. See also, e.g., Weaponized Mass

Migration, 119th Cong. 3 (statement of Natalia Banulescu-Bogdan) (“Recent

incidents of weaponization may also involve non-state actors too (such as

smugglers, militias, or criminal gangs), adding to the complexity of forging an

effective response.”).

It is precisely these kinds of threats that motivated the State of Texas

to enact S.B. 4 in 2023. According to the Governor’s Special Advisor on

Border Matters, “[t]he alarming influx of immigrants with criminal

convictions and suspected terrorists along the southern border presents a

grave security risk. . . . As a result of the spike in illegal migration, and

accompanying crime, counties along the southern border have been under a

continuous state of disaster since May 31, 2021.” Declaration of Michael

Banks, Special Advisor on Border Matters to the Governor of Texas.

In the three years preceding the passage of S.B. 4, “more than 6

million illegal immigrants from more than 100 countries . . . crossed the U.S.

southern border.” Id. In Fiscal Year 2023, “unlawful crossings of the

Southwest border . . . reached a record high of 2,475,699, and that number

does not include known or unknown ‘gotaways.’” Id. Border Patrol agents

also “arrested 15,267 illegal immigrants with criminal convictions in the

United States, [likewise] a record high.” Id.

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Moreover, these unlawful crossings include hundreds of individuals

on the terrorist watchlist. See id. (“Border Patrol has encountered 336

persons on the terrorist watchlist from FY 2021 to FY 2024 at the southern

border. This is up from 15 of such individuals encountered from FY 2017 to

2020.”). And Border Patrol apprehended nearly 2,000 gang affiliates in this

period. See id.

II.

My dissenting colleagues don’t challenge these points. Instead, they

counter that it doesn’t matter that the State of Texas wishes to treat illegal

immigration as an invasion under Article I, section 10 of the Constitution,

because federal statutes supersede federal constitutional rights. See post, at

136 (Richman, J., dissenting) (“[F]ederal statutes addressing matters such as

alien entry and removal are still supreme even when the State War Clause

has been triggered.”); post, at 149 (Higginson, J., dissenting) (same).

But “federal statutes ordinarily must give way to federal

constitutional rights.” Abbott, 110 F.4th at 737 (Ho, J., concurring in the

judgment in part and dissenting in part). No one in Abbott offered a

“principled reason why Congress may enact statutes that violate rights under

Article I, but not under the First Amendment.” Id. Nor does anyone here.

For their part, the dissenters invoke Torres v. Tex. Dep’t of Pub. Safety,

597 U.S. 580 (2022). See post, at 136 & n.487 (Richman, J., dissenting). But

tellingly, they didn’t invoke Torres in Abbott (even though Torres was briefed

there, too). No one in Abbott claimed that Torres somehow precludes Texas

from treating illegal immigration as an invasion. And for good reason. Torres

is about a federal law protecting federal soldiers. It says nothing about a state’s

efforts to protect its sovereign interests. Indeed, there was no state law at

issue in Torres at all—let alone one invoking the state’s war power. And

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Torres itself fully acknowledges that states may indeed engage in war in case

of invasion. See 597 U.S. at 590.

The dissenters also claim that there was no discussion of the state war

power during the ratification process. See post, at 136 (Richman, J.,

dissenting).

But in Abbott, I observed that the Virginia ratification debates

constitute “the most authoritative historical source for interpreting the war

power.” 110 F.4th at 731–32 (quoting Yoo, War and the Constitutional Text,

at 1660). James Madison observed that states may engage in war in case of

invasion under Article I, section 10, and that when states find themselves “in

such danger, they are not restrained.” Id. at 731 (quoting 3 Debates in

the Several State Conventions on the Adoption of the

Federal Constitution 425 (Jonathan Elliot ed., 1836)). John

Marshall thought it “unquestionable” that “the state governments can call

forth the militia . . . in the same manner as they could have done before” the

Constitution. Id. at 732 (quoting Elliot at 419). He repudiated any suggestion

that “the states cannot defend themselves without an application to

Congress.” Id. As he put it: “Does not every man feel a refutation of the

argument in his own breast?” Id. “When invaded, they can engage in war,

as also when in imminent danger. This clearly proves that the states can use the

militia when they find it necessary.” Id. (quoting Elliot at 419–20) (emphasis

added).

Finally, my colleagues conclude that the war power doesn’t include

measures like S.B. 4 in any event. See post, at 149 (Higginson, J., dissenting)

(“‘[T]he State War Clause provides authority to do a particular thing:

namely, to make war,’ not to enact a state immigration scheme.”).

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But “[t]he power to wage war is the power to wage war successfully.”

Lichter v. United States, 334 U.S. 742, 780 (1948) (quoting Charles E.

Hughes, War Powers Under the Constitution, 42 A.B.A. Rep. 232, 238 (1917)).

And “detention . . . is a fundamental incident of waging war.” Hamdi

v. Rumsfeld, 542 U.S. 507, 519 (2004) (plurality opinion of O’Connor, J.). See

also id. at 518 (same); id. at 586–87 (Thomas, J., dissenting) (same); Moyer v.

Peabody, 212 U.S. 78, 84–85 (1909) (recognizing the power of “seizing the

bodies of those whom [the Governor] considers to stand in the way of

restoring peace,” “not necessarily for punishment, but . . . by way of

precaution, to prevent the exercise of hostile power”); United States v.

Salerno, 481 U.S. 739, 748 (1987) (citing Ludecke v. Watkins, 335 U.S. 160

(1948)) (“[I]n times of war or insurrection, when society’s interest is at its

peak, the Government may detain individuals whom the Government

believes to be dangerous.”); William Whiting, War Powers

Under the Constitution of the United States 191 (10th ed.

1864) (“[T]he military commander has the power, in time of war, to arrest

and detain all persons who, being at large he has reasonable cause to believe

will impede or endanger the military operations of the country.”).

So it’s hard to understand how S.B. 4 could possibly be beyond the

scope of the war power. After all, “any policy toward aliens is vitally and

intricately interwoven with . . . the war power.” Harisiades v. Shaughnessy,

342 U.S. 580, 588–89 (1952). Indeed, “[w]ar . . . is the most usual occasion

for extensive resort to the power” to “terminate [the Government’s]

hospitality” toward aliens. Id. at 587. See also, e.g., James Kent, 1

Commentaries on American Law 53 (1826) (“When hostilities

have commenced, the first objects that naturally present themselves for

detention and capture, are the persons and property of the enemy, found

within the territory at the breaking out of the war. According to strict

authority, a state has a right to deal as an enemy with persons and property

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so found within its power, and to confiscate the property and detain the

persons as prisoners of war.”). And “[s]uch matters are so exclusively

entrusted to the political branches of government as to be largely immune

from judicial inquiry or interference.” Harisiades, 342 U.S. at 589.

***

War is the continuation of politics by other means. See, e.g., de Sanchez

v. Banco Central De Nicaragua, 770 F.2d 1385, 1386 (5th Cir. 1985) (quoting

Carl von Clausewitz). Our Founders thus naturally vested the war power in

elected officials, not federal judges. The judiciary decides matters of law, not

war. So if our constitutional separation of powers means anything, it means

that the judicial branch must defer to the executive when it comes to the

exercise of the war power.

Just as citizens may disagree over the propriety of treating terrorism

as an act of war, rather than as a crime, citizens may disagree over the proper

response to the illegal immigration crisis. See, e.g., Yoo & Ho, The Status of

Terrorists, at 208. But if our adversaries are going to weaponize mass

migration to harm America as well as other countries, our elected officials are

entitled to respond accordingly. And in any event, these are political matters

for which elected officials are held accountable by voters, not judges. See,

e.g., id. at 211–12.

Moreover, these principles don’t just govern this case, or future

plaintiffs who may have standing to challenge S.B. 4. They may also have

profound consequences in other contexts that turn on the existence of an

invasion. So my disagreement with the dissenters isn’t just relevant today—

it may be relevant in a number of future cases to come. 2

_____________________

2

For example, the existence of an invasion authorizes detention and removal under

the Alien Enemies Act. See, e.g., Amicus Curiae Brief of South Carolina and 24 Other

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_____________________

States in Support of Respondents-Appellees, at 20, in W.M.M. v. Trump, No. 25-10534 (5th

Cir. June 17, 2025) (invoking my solo opinion in Abbott); Response to Motion for

Temporary Restraining Order in Y.A.P.A. v. Trump, at 12, No. 4:25-cv-144-CDL-CHW

(M.D. Ga. May 14, 2025) (same). It also has obvious implications for the Fourteenth

Amendment. See, e.g., Ted Cruz, North Is Still North, 30 Tex. Rev. L. & Pol. 1, 16–17

& n.84 (2026) (“solo opinion in Abbott firmly supports [Executive Order 14160],” because

“birthright citizenship indisputably does not apply in cases of war or invasion”) (citing Josh

Blackman, Four Questions and Few Answers About the Invasion Clause, Civitas (Feb. 13,

2025); Amicus Curiae Brief of U.S. Senator Ted Cruz, Representative Jim Jordan, and

Other Members of Congress in Support of Petitioners, at 21 & n.9, in Trump v. Barbara,

No. 25-365 (Jan. 28, 2026); and Amicus Curiae Brief of Tennessee, Iowa, 23 Other States,

and Guam in Support of Petitioners, at 29-30, in Trump v. Barbara, No. 25-365 (Jan. 27,

2026)); Amicus Curiae Brief of Iowa and 19 Other States in Support of Applicants, at 14,

in Trump v. CASA, Inc., No. 24A884 (Mar. 28, 2025) (same); Daniel Whitehead,

Securitization: A Solution to the Migration Crisis in the United States, New Digest (Nov.

28, 2024) (same).

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Andrew S. Oldham, Circuit Judge, joined by Elrod, Chief Judge, and

Jones, Willett, Ho, Duncan, and Engelhardt, Circuit Judges,

concurring *:

I concur in the majority opinion. These plaintiffs have not come close

to establishing standing.

In reaching a contrary conclusion, my dissenting colleagues address a

host of other justiciability and merits issues. I will not delay the issuance of

today’s decision to respond to all the assertions in the dissents, which span

more than 100 pages. I have already responded to much of them in previous

phases of this long-running dispute. United States v. Texas, 97 F.4th 268 (5th

Cir. 2024) (Oldham, J., dissenting) (stay); United States v. Texas, 144

F.4th 632 (5th Cir. 2025) (Oldham, J., dissenting) (merits).

Instead, this opinion is limited to one merits issue: whether Texas

Penal Code § 51.02 is conflict-preempted. Section 51.02 is the arrest

provision in Texas’s S.B. 4, and it is the particular focus of today’s dissents.

Those dissents overlook three problems, however: (I) the burden required to

mount a facial conflict-preemption challenge, (II) plaintiffs’ failure to meet

that burden as to Texas Penal Code § 51.02, and (III) the many ways Arizona

is not to the contrary.

I

Plaintiffs brought a facial challenge to Texas’s S.B. 4. “[T]hat

decision comes at a cost.” Moody v. NetChoice, LLC, 603 U.S. 707, 723

(2024). Facial challenges are, “of course, the most difficult challenge to

mount successfully, since the challenger must establish that no set of

_____________________

*

Chief Judge Elrod joins in all but footnote 5.

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circumstances exists under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987); see also Bondi v. VanDerStok, 604 U.S. 458,

466–67 (2025) (rejecting facial challenge against regulation of weapon parts

kits because statute covered “at least some” kits). Attempting to show that

the challenged law can never be validly applied creates a host of conceptual

and legal difficulties. See Moody, 603 U.S. at 752–66 (Thomas, J.,

concurring in the judgment). As a result, facial challenges are “disfavored”

and “hard to win.” Id. at 723, 744 (majority opinion). The court cannot

“focus[] on hypothetical scenarios where [the challenged law] might raise

constitutional concerns.” United States v. Rahimi, 602 U.S. 680, 701 (2024).

Were we to do so, we’d be left “slaying a straw man.” Ibid. Instead, we must

conclude that “no set of circumstances exists under which the [law] would

be valid.” Moody, 603 U.S. at 723 (quotation omitted). Because these

plaintiffs chose to bring a facial challenge, the no-set-of-circumstances

burden “is the price of [their] decision.” Id. at 744. A steep price indeed.

II

Here, plaintiffs cannot meet Salerno’s no-set-of-circumstances test. It

is easy to imagine an application of S.B. 4 that is not conflict preempted. Take

for example the most common, heartland application of the state law. I

suppose it’s a hypothetical because the federal courts have not allowed the

state law to take effect for even one day. But it’s an easy hypothetical to

posit—because during the previous presidential administration, the

underlying facts happened virtually every day. And in this hypothetical, not

only is the application of S.B. 4 consistent with federal law, but S.B. 4 actively

facilitates federal law.

Imagine a Texas rancher who owns 10,000 acres abutting the United

States-Mexico border. The ranch is situated just north of Eagle Pass—the

town that became ground zero for illegal border crossings between 2021 and

2024. The ranch owner is frustrated because illegal aliens are crossing from

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Mexico, cutting his fences, and leaving tents, backpacks, and drug

paraphernalia scattered across his property. Angry that the migrants are

letting his cattle escape and making his ranch look like downtown Austin, the

rancher calls the Maverick County Sheriff’s Office and complains. The

Sheriff sends his deputies, who spot a group of migrants cutting the rancher’s

fence, crossing the Rio Grande, and scrambling up its banks. The deputies

arrest the migrants.

Now, the dissent is correct that, according to the Supreme Court, our

“assessment of a facial challenge is limited to a law’s applications that are not

already legitimately authorized by other laws.” Post, at 95 (Richman, J.,

dissenting) (citing City of Los Angeles v. Patel, 576 U.S. 409, 418 (2015)). So,

in my hypothetical, consider (1) what happens under S.B. 4 and (2) what

happens in the absence of S.B. 4.

First, suppose the Texas officers arrest the migrants under S.B. 4. See

Tex. Penal Code § 51.02(a) (authorizing this). The aliens are arrested

and brought before a magistrate within 48 hours. See Tex. Crim. Proc.

Code art. 15.17. At magistration, the state judge learns the migrants are from

Nicaragua and fear returning to that country because they’ll be tortured. The

aliens agree to return to Mexico, where they had been living before they cut

the rancher’s fence. So in lieu of additional criminal process, the magistrate

orders the aliens to return to Mexico and orders state officers to transport

them to a port of entry. See id. art. 5B.002(a), (c); Texas En Banc Br. at 6

(“[T]he State has consistently represented that it will transport aliens to a

port of entry and deliver them to federal officials.” (citing ROA.315–16)).

When the sheriff’s office turns the group over to federal authorities, CBP

processes the aliens in accordance with federal immigration law and the

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Convention Against Torture. 1 None of this is authorized by any other

provision of state law. See Patel, 576 U.S. at 418.

Second, consider what happens without S.B. 4. Texas officials still

arrest the migrants pursuant to the State’s criminal trespass law. See Tex.

Penal Code § 30.05(a). The State officers then take the migrants to a state

facility and deposit them into the state criminal justice system. Because

violations of § 30.05(a) are generally a Class B misdemeanor, see id.

§ 30.05(d), the state judge arraigns the migrants and denies them bail because

they are a proven flight risk—after all, they’ve already demonstrated their

willingness to abscond. And because Younger abstention bars federal courts

from interfering in ongoing state judicial proceedings, the migrants cannot

turn to federal court for injunctive relief. Gates v. Strain, 885 F.3d 874, 880

(5th Cir. 2018). As a result, the aliens are stuck in the state system for months

if not years.

Now, which outcome is more consistent with federal immigration

law? The application of S.B. 4, in which the migrants end up in federal

custody and are processed consistent with federal law? Or the application of

§ 30.05(a), in which the migrants end up in state jail for criminal trespass?

And if it is okay to jail or imprison aliens for a host of state law crimes, see

post, at 91 (Richman, J., dissenting) (conceding that), why is it not okay to

deliver the same aliens to federal authorities in lieu of state prosecution? To

ask these questions is to answer them. And the fact that this obvious

application of S.B. 4 is consistent with—and even promotes—the objectives

_____________________

1

The alien who faces torture in Nicaragua may be deported to Mexico because

migrants who assert a claim under the Convention Against Torture “still may be removed

to other countries.” Nasrallah v. Barr, 590 U.S. 573, 575 (2020).

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of federal law means the former cannot possibly conflict with the latter.

Moody, 603 U.S. at 723. 2

III

The Supreme Court’s decision in Arizona is not to the contrary.

In that case, the most salient provision of state law was Arizona’s § 6.

That provision authorized a state officer “without a warrant, [to] arrest a

person if the officer has probable cause to believe . . . [the person] has

committed any public offense that makes [him] removable from the United

States.” Arizona v. United States, 567 U.S. 387, 407 (2012) (quotation

omitted). The Court emphasized three conflicts between § 6 and federal law.

First, § 6 authorized state officers to make warrantless arrests—in conflict

with federal law, which specifies when warrants can be issued to arrest aliens

during removal proceedings. See id. at 407–08 (citing 8 C.F.R. § 241.2(a)(1)).

Second, § 6 authorized state officers to make unilateral decisions when they

had probable cause that an alien committed a “public offense.” Id. at 408.

The concept of a “public offense” has no analogue in federal law—so it

“could be exercised without any input from the Federal Government about

_____________________

2

The dissenters’ principal response is to decry this example as fantastical. Post, at

51–53, 89–90 (Richman, J., dissenting). Rhetoric aside, the dissenters are correct—no

one knows how Texas would enforce S.B. 4. And that is entirely the fault of the federal

courts, which have universally enjoined every potential application of the State’s law before

it could go into effect. But we do know two things. First, Texas has insisted—in its briefs

and in its oral arguments before our court—that its courts and its officers will promote

federal immigration prerogatives by delivering arrested aliens to federal immigration

authorities. And second, “our federal system requires us to presume that state courts will

in good faith at least try to honor federal law.” Texas, 97 F.4th at 331 (Oldham, J.,

dissenting) (citing, inter alia, Robb v. Connolly, 111 U.S. 624, 637 (1884)). So in a facial pre-

enforcement challenge—where everything is hypothetical—which is more fantastical:

presuming that Texas will honor federal law or presuming that Texas will intentionally

violate the Convention Against Torture? See post, at 46, 138–39 (Richman, J., dissenting)

(asserting the latter).

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whether an arrest is warranted in a particular case. This would allow the State

to achieve its own immigration policy.” Ibid.; see also id. at 410 (finding that

Arizona’s law would facilitate “the unilateral decision of state officers to

arrest an alien for being removable absent any request, approval, or other

instruction from the Federal Government.”). And third, § 6 turned on

“removability”—which is a term of art in federal immigration law. The INA

has numerous provisions that allow the Attorney General to adjust the status

of otherwise removable aliens. See, e.g., 8 U.S.C. §§ 1158(b) (asylum),

1159(b) (adjustment of status), 1182 (inadmissibility), and 1227(a) (removal).

So by allowing state officials to arrest aliens who the Attorney General could

authorize to stay in the United States, § 6 authorized “unnecessary

harassment of some aliens (for instance, a veteran, college student, or

someone assisting with a criminal investigation) who federal officials

determine should not be removed.” Arizona, 567 U.S. at 408. These three

features—(1) warrantless arrests, (2) unilateral decisions, and (3) state

determinations of removability—created intolerable conflicts between

Arizona law and the INA.

Texas’s S.B. 4 has none of these features. It says nothing about

warrantless arrests. It does not authorize state officials to make unilateral

decisions with vague terms like “public offense” that could be interpreted to

create state immigration policy, to conduct immigration raids at workplaces

or homes, or to otherwise “harass[]” lawfully present aliens. Ibid. To the

contrary, Texas law expressly incorporates federal immigration policy. See,

e.g., Tex. Penal Code § 51.02(c) (providing affirmative defenses to

prosecution based on federal law). And S.B. 4 is not keyed to removability;

rather, it is keyed to illegal entry into Texas outside ports of entry—by, for

example, cutting the border fence at Eagle Pass. Compare id. § 51.02(a), with

8 U.S.C. § 1325 (prohibiting the same thing).

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True, Arizona never mentioned the Salerno no-set-of-circumstances

requirement. The real rub in this case is what to make of that silence. In my

view, Salerno should nonetheless apply for two reasons. First, the Supreme

Court has repeatedly reversed this court for not applying it. See Part I, supra.

And second, Arizona itself cautioned that facial pre-enforcement challenges

create “a basic uncertainty about what the law means and how it will be

enforced.” 567 U.S. at 415. It is thus difficult if not impossible to say that all

applications of the State’s law are preempted when all those applications are,

by definition, hypothetical. See ibid. (relying on this problem to hold

provision of Arizona law not preempted).

Today’s dissenters, by contrast, think we should create our own

“inverse Salerno doctrine”: We should “look[] for one possible

unconstitutional application here, and another there, and then conclude[]

that S.B. 4 is facially preempted.” Texas, 144 F.4th at 726 (Oldham, J.,

dissenting). Here’s how the dissents’ inverse Salerno doctrine works, step-

by-step:

1. Imagine the most aggressive, furthermost, outer-bound

potential applications of the state law—ones that no one

actually contemplates, ones that are independently illegal, and

ones that presume bad faith on behalf of State actors. For

example, the principal dissent asserts that state officials want

and are actively planning to remove aliens in violation of federal

law. See post, at 46 (Richman, J., dissenting).

2. Ignore the State’s repeated and adamant assurances to the

contrary. See, e.g., Texas En Banc Br. at 6 (citing ROA.315–16).

3. Adjudicate the case in a facial, pre-enforcement posture so

there is no way to know how the State will actually enforce its

law. And insist that this uncertainty—created solely by the

plaintiffs’ litigation choices—allows federal courts to presume

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the worst and most illegal motivations on behalf of the State

defendants.

4. Find that one potential application of state law could conflict

with federal law.

5. Facially enjoin the entirety of state law before any of it goes into

effect; deprive the State of its obviously constitutional

applications of state law; and find a “conflict” where state law

is consistent with and actively promotes federal law. Post, at

120–35 (Richman, J., dissenting) (doing that).

The Supreme Court has never embraced this. And the Supreme Court

has expressly rejected it in Salerno itself—as well as in Moody, VanDerStok,

and Rahimi (among others). 3 And the entirety of preemption doctrine

supports it. As the Supreme Court has emphasized, all preemption cases

must be guided by the “two cornerstones of our pre-emption jurisprudence.

First, ‘the purpose of Congress is the ultimate touchstone in every pre-

emption case.’” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation

omitted). And the second is the presumption against preemption: “[W]e

start with the assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” Ibid. (quotation omitted). How can it be

Congress’s purpose to preempt state laws that are consistent with and

promote federal law? And how can the presumption against preemption

survive if the dissenters are correct that we should preempt the entirety of

Texas law—including applications of it that are obviously lawful—based on

_____________________

3

While the dissent collects citations from our sister circuits expressing

“uncertainty” about whether Salerno applies in the preemption context, those citations

uniformly predate the Court’s recent reiterations of Salerno in Moody, Rahimi, and

VanDerStok. Post, at 87 & n.258 (Richman, J., dissenting).

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hypothetical fears and based on hypothetical future applications of that law

that the State actively disclaims? 4

The dissenters’ position does not improve even if we adopt the

premise that no Supreme Court decision involving preemption has ever

applied Salerno. Post, at 86–88 (Richman, J., dissenting). In the typical

preemption case, the State has already applied its law to a particular set of

facts—say, finding a medical-device manufacturer liable for a plaintiff’s

injuries under New York tort law. Riegel v. Medtronic, Inc., 552 U.S. 312, 320

(2008). The court then compares that state-law application with the

potentially conflicting federal statute—there, the Medical Device

Amendments of 1976. Id. at 316. Say the Court then finds that application of

New York tort law preempted. Id. at 330. The remedy is not to preemptively

and facially invalidate all of New York tort law. The remedy is to let the State

apply its law and hold the conflicting application or provision of the state law

preempted. That is exactly what the Court has done time and again in

preemption cases. Cf. Arizona, 567 U.S. at 416 (finding only three provisions

of Arizona’s S.B. 1070 preempted).

_____________________

4

As noted at the outset, this opinion is limited to conflict preemption. I’ve already

addressed field preemption at length. See Texas, 144 F.4th at 721–24 (Oldham, J.,

dissenting). And it suffices for present purposes to say that the Supreme Court has applied

field preemption to only one immigration field: the field of alien registration. And no one—

not even the dissenters—says that S.B. 4 regulates in that field. And no one—not even the

dissenters—can point to a single case finding field preemption where Congress has

affirmatively authorized the States to participate. See id. at 722–23 (Oldham, J.,

dissenting) (collecting various provisions of federal law). Yet the dissenters also claim that

any and all “unilateral” actions by any State anywhere in the field of immigration are

somehow preempted. See post, at 51–52, 91–93 (Richman, J., dissenting). Were that true,

(1) the Arizona opinion would have been much shorter, and (2) the entirety of that State’s

law would have been preempted. But see Arizona, 567 U.S. at 411–15 (holding not preempted

a state-law provision that authorized unilaterally detaining aliens while checking their

immigration status); id. at 416 (holding only three provisions of Arizona law preempted).

34

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The dissenters’ contrary assertions are startling. In the dissenters’

ideal world, S.B. 4 will be facially enjoined and will never go into effect for

any potential applications. But what happens when the local sheriff’s office

arrests illegal aliens for criminal trespass under § 30.05 of Texas’s Penal

Code? See Part II, supra. Is that also conflict preempted? After all, that

application of § 30.05(a) causes a significant intrusion into the federal

immigration process. So under the dissent’s inverse-Salerno theory of

conflict preemption, presumably all of Texas criminal trespass law ought to

be facially enjoined? So too with criminal trespass law in New Mexico,

Arizona, California, and every northern border State? With all respect, that

is the opposite of how conflict preemption works.

*

Arizona held that “[f]ederal law specifies limited circumstances in

which state officers may perform the functions of an immigration officer.”

567 U.S. at 408. But the most obvious, mine-run applications of Texas’s S.B.

4 do not transform state officials into federal immigration officers. Rather,

they allow state officers to cooperate with their federal counterparts to stop

illegal border crossings in perfect harmony with federal law. And from there,

federal officers can make whatever removability determinations they want.

At a minimum, such constitutional applications of S.B. 4 doom plaintiffs’

facial pre-enforcement challenge—even assuming the plaintiffs have

standing, which they plainly do not, and even assuming away the other

justiciability problems, 5 which we plainly cannot.

_____________________

5

For example, it is not at all clear that Ex parte Young applies. The principal dissent

appears to concede that S.B. 4 can never be enforced against these plaintiffs. See post, at 80

(Richman, J., dissenting). And no Supreme Court case has ever held that plaintiffs can

invoke Ex parte Young in the absence of a violation of their own rights. Cf. Va. Off. for Prot.

& Advoc. v. Stewart, 563 U.S. 247, 250–51 (2011) (emphasizing the plaintiff’s federal

statutory rights and that the Ex parte Young suit in that case would vindicate plaintiff’s own

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With these observations, I concur.

_____________________

federal rights); id. at 260 (“In order to invoke the Ex parte Young exception to sovereign

immunity, a state agency needs . . . a federal right that it possesses.” (emphasis added)).

36

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Priscilla Richman, Circuit Judge, dissenting, in which Stewart,

Southwick, Higginson, and Ramirez, Circuit Judges, joined, and

in which Graves and Douglas, Circuit Judges, joined as to Part II:

Texas has enacted its own immigration laws. It has been widely

reported that those laws were designed to challenge the Supreme Court’s

decision in Arizona v. United States 1 and that JUSTICE SCALIA’s dissenting

opinion in that case provided a “pathway.” 2 The Arizona decision remains

_____________________

1

567 U.S. 387 (2012).

2

As one report stated:

The changes not only will give state and local police the authority to arrest

suspected immigration offenders, but state judges could order them to

return to Mexico. But can they do that? The Supreme Court said no when

Arizona tried, but a dissenting opinion offered a possible way out. Gov.

Abbott says, “Justice Scalia wrote a dissenting opinion in that case pretty

much laying out a pathway that he thought would be a legal way for a state

to go about the process of enforcing immigration laws.”

Fred Cantu, Texas Governor Signs Controversial Law to Empower State Arrest of Immigration

Violators, CBS Austin (Dec. 18, 2023), https://cbsaustin.com/news/local/texas-

governor-signs-controversial-law-to-empower-state-arrest-of-immigration-violators.

Other reports elaborated:

In a wide-ranging speech in Austin shortly after the hearing, Mr. Abbott,

who has said that he expects the Supreme Court to eventually decide the

constitutionality of the law, suggested that the statute had been crafted to

challenge the high court’s precedent in the 2012 case, Arizona v. United

States, which was decided 5 to 3. “We found ways to try to craft that law

to be consistent” with the dissent that the late Justice Antonin Scalia wrote

in the Arizona case, Mr. Abbott said. Justice Scalia had suggested that the

Arizona measures did not conflict with federal law but simply added state

penalties to help enforce existing federal restrictions.

J. David Goodman, Appeals Court Considers Reviving Texas Migrant Law, Now on Hold,

N.Y. Times (Mar. 20, 2024), https://www.nytimes.com/2024/03/20/us/texas-

immigration-

law.html#:~:text=In%20a%20wide%2Dranging%20speech,help%20enforce%20existing%20f

ederal%20restrictions.

37

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controlling, and the immigration laws Texas has enacted are preempted by

federal law. 3 At least one of the plaintiffs in this case, Las Americas

Immigrant Advocacy Center (Las Americas), has standing to seek an

injunction against the enforcement of those preempted state laws. Because a

majority of the en banc court concludes otherwise, I dissent. I would reach

the merits and affirm the district court’s preliminary injunction against the

enforcement of the state laws that permit Texas to arrest and remove illegal

immigrants. Federal laws on the books permit Texas to assist the federal

government in apprehending illegal immigrants if the federal government so

requests. 4 But Texas cannot enact its own immigration regime.

I address the majority opinion in more detail below, as well as the

merits of whether Texas’s immigration laws are preempted. JUDGE

OLDHAM’s concurring opinion is addressed in Parts V(A)(2) and V(B). But

at the outset, I will “hit the high points.”

_____________________

When he signed the law, Texas Republican Gov. Greg Abbott

acknowledged that the issue could end up back at the Supreme Court. “We

think that Texas already has the constitutional authority to do this, but we

also welcome a Supreme Court decision that would overturn the precedent

set in the Arizona case,” Abbott told CNN’s Rosa Flores.

Devan Cole, Texas Immigration Controversy Rekindles Fight Over Arizona’s ‘Show Me Your

Papers’ Law, CNN (Apr. 3, 2024), https://www.cnn.com/2024/04/03/politics/texas-

immigration-law-sb-

4#:~:text=%E2%80%9CThe%20(Arizona)%20law%20that,immigration%20law%20%E2%80

%9Cmore%20effectively.%E2%80%9D.

3

See post at 99-135.

4

See, e.g., 8 U.S.C. § 1357(g).

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Standing

Standing is a threshold issue in this case. The Supreme Court

explained in FDA v. Alliance for Hippocratic Medicine, 5 that “[w]hen 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.’” 6 The Court

said, “Therefore, to 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.” 7 The Texas laws at issue

do not regulate Las Americas. But they do regulate illegal aliens. The record

reflects that Las Americas is “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.” 8 “For this reason, [Las Americas has] consistently

focused [its] 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.” 9 It is highly predictable that if Texas’s

preempted immigration laws go into effect, at least some of the illegal aliens

_____________________

5

602 U.S. 367 (2024).

6

Id. at 383 (second alteration in original) (quoting Lujan v. Defs. of Wildlife, 504

U.S. 555, 562 (1992)).

7

Id. (quoting California v. Texas, 593 U.S. 659, 675 (2021) (quoting Dep’t of Com.

v. New York, 588 U.S. 752, 768 (2019))).

8

ROA.938, ¶ 14.

9

ROA.938, ¶ 14.

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apprehended in the West Texas area would be counseled or represented by

Las Americas. How does that injure Las Americas?

If the preempted state laws were to go into effect, the resources

(donations, grant money, and human resources) Las Americas would expend

in representing clients pro bono in the state immigration system would be

irretrievably lost. Those resources would otherwise be used in representing

clients in the federal immigration system. The loss of dollars and cents

expended in counseling clients caught up in a state immigration system that

should not exist is not the only injury. Because Las Americas would be

representing aliens in dual state and federal immigration regimes, it could not

represent as many clients in the federal immigration system, to the detriment

of its core function.

The preempted state laws open a second, entirely new front that Las

Americas would have to navigate, in addition to the federal immigration

system, in order to provide counseling and legal representation to its indigent

clients. Navigating that new, separate, and unlawful system (including

physically accessing the state’s jails, prisons, or other holding facilities and

appearing in state courts) comes at a cost, in dollars and cents and human

resources.

As explained in greater detail below, under the new state laws, illegal

aliens apprehended under the state immigration laws would be fast-tracked

for removal from Texas. The laws expressly 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.” 10 Las Americas would prioritize clients

_____________________

10

S.B. 4, 88th Leg., 4th C.S., ch. 2, § 1, 2023 Tex. Gen. Laws 4750, 4752 (codified

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

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detained under Texas immigration laws who face expedited removal and

potential loss of an opportunity to pursue federal asylum and Convention-

Against-Torture-Act (CAT) claims because that is at the core of Las

Americas’s mission. 11

Would Las Americas “voluntarily incur[] costs to advocate for

clients” 12 prosecuted under Texas’s unlawful immigration laws? Would that

cause it to “divert” 13 resources from representing clients in the federal

immigration system? The answer is decidedly “yes” to both questions. But

that does not answer the question of whether the preempted state

immigration laws would “perceptibly impair[] [Las Americas’s] ability to

provide counseling . . . services for low- and moderate-income” clients. 14

The answer to that question is also decidedly “yes.” Asserting jurisdiction

over illegal aliens, arresting or detaining them, and requiring their removal or

“return” on the basis of federally-preempted state laws would “directly

affect[] and interfere[] with [Las Americas’s] core business activities” 15 just

as the violations of federal law directly affected HOME’s core business

activities in Havens Realty Corp. v. Coleman. 16 Using labels such as

“voluntary” costs or a “diversion” of funds does not alter the actual facts or

the cause and character of the injury to Las Americas.

_____________________

11

ROA.937, ¶¶ 11-13.

12

Ante at 2.

13

Ante at 7.

14

FDA v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024) (quoting Havens Realty

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

15

Id.

16

455 U.S. 363 (1982).

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Las Americas has standing because, like the plaintiff in Havens Realty

who “not only was an issue-advocacy organization, but also operated a

housing counseling service,” 17 Las Americas operates an immigration

counseling service. The fact that Las Americas is also “an issue-advocacy

organization” 18 (which is not a basis for standing, as we all agree) does not

strip it of standing.

Nor is the fact that the Texas immigration laws do not regulate Las

Americas dispositive. In Havens Realty, HOME, a non-regulated “housing

counseling organization,” 19 had standing to sue Havens Realty, a regulated

apartment building owner. The majority opinion in the case before us today

says that Havens Realty is inapposite because the regulated defendant directly

made a misrepresentation to HOME. 20 That characterization of Havens

Realty does not capture all the facts in that case. The misrepresentation was

made to a black person HOME had hired as a “tester plaintiff” who had no

intention of renting an apartment. 21 The tester plaintiff inquired if an

apartment was available and was falsely told no. 22 The misrepresentation was

not made to HOME, as an organization, but to an individual whom the

apartment owner thought was seeking housing. But the Supreme Court held

that HOME had standing to sue based on injury to its counseling and

referral-service activities. 23 HOME “provide[d] counseling and referral

_____________________

17

All. for Hippocratic Med., 602 U.S. at 395 (citing Havens Realty, 455 U.S. at 368).

18

Id.

19

Id.

20

Ante at 9.

21

Havens Realty, 455 U.S. at 368, 373.

22

Id.

23

Id. at 379 (“If, as broadly alleged, petitioners’ steering practices have perceptibly

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

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services for low- and moderate-income homeseekers.” 24 The

misrepresentation amounted to unlawful racial steering. 25

In Alliance for Hippocratic Medicine, the Supreme Court explained that

“[d]etermining causation in cases involving suits by unregulated parties

against the government is admittedly not a ‘mechanical exercise.’” 26 “That

is because the causation inquiry can be heavily fact-dependent and a

‘question of degree.’” 27 The Court continued, “Unfortunately, applying the

law of standing cannot be made easy, and that is particularly true for

causation. Just as causation in tort law can pose line-drawing difficulties, so

too can causation in standing law when determining whether an unregulated

party has standing.” 28 The Supreme Court’s decision in Havens Realty,

reaffirmed in Alliance for Hippocratic Medicine, allowed a “housing counseling

organization” to sue housing owners for actions that violated a federal statute

(misrepresentations to putative house hunters that amounted to “racial

steering”). 29 I cannot see a principled distinction between Havens Realty, the

discussion of it in Alliance for Hippocratic Medicine, and the present case.

Stated another way, I cannot see a principled basis for saying that housing

counseling organizations across the country that provide counseling to low-

_____________________

moderate-income homeseekers, there can be no question that the organization has suffered

injury in fact. Such 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.”).

24

Id.

25

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

26

Id. at 384 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

27

Id. (quoting argument of counsel, Tr. of Oral Arg. 50).

28

Id.

29

Id. at 395.

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income clients can sue apartment owners who violate federal law to the

detriment of the housing-counseling organizations’ businesses, but an

organization that provides legal counseling to low-income illegal immigrants

cannot sue a state that unlawfully subjects the organization’s clients to its

laws to the detriment of the counseling organization’s business. Any further

line-drawing in this area should be done by the Supreme Court, not this court.

Facial Challenges and Preemption

The majority opinion’s discussion of the mechanics of Texas’s

immigration laws suggests that there is no conflict with federal immigration

laws, and in any event, it would be inappropriate to consider facial challenges

to the state immigration laws because it is unclear how the state laws will be

enforced. First, the Texas laws are absolutely clear that aliens will be arrested

or detained and ordered to leave the state of Texas or suffer criminal

prosecution under state law. Second, the Supreme Court’s decision in

Arizona sustained facial challenges to state immigration laws similar to

Texas’s laws based on the text of those statutes. 30 Third, the Texas

immigration laws do conflict with federal law.

The majority opinion says, “The statute includes affirmative defenses

to prosecution, all of which defer to federal determinations of

admissibility.” 31 This is inaccurate. The key word here is “determinations.”

The affirmative defenses only apply to “grant[s]” of asylum or lawful

presence, or an approval of DACA benefits between certain dates. 32 As noted

above, Texas law says, “[a] court may not abate the prosecution of an offense

_____________________

30

Arizona v. United States, 567 U.S. 387, 400-10 (2012).

31

Ante at 4 (footnote omitted).

32

See Tex. Penal Code § 51.02(c).

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under Chapter 51 . . . on the basis that a federal determination regarding the

immigration status of the defendant is pending or will be initiated.” 33

The majority opinion says the parties dispute “how [exactly] return

orders will be enforced” under the Texas immigration laws. 34 But this is a

red herring. There is absolutely no dispute whatsoever that Texas intends to

arrest or otherwise detain illegal aliens and subject them to processing under

state law. The purpose of the Texas immigration laws is to apprehend and

remove more illegal aliens from Texas than the federal government had been

apprehending and removing when the state laws were enacted, and to do so

faster than the federal government had done. It is farcical to suggest that it

would be business as usual, with no difference in enforcement between the

federal and state laws, if Texas is permitted to enforce its own immigration

laws.

In the same vein, the majority opinion says, “State officials have

consistently represented that they will coordinate with federal immigration

authorities if aliens have return orders or pending asylum applications.” 35 To

the extent “State officials” refers to affidavits of Texas Department of Public

Safety (DPS) officers, they have no say in the matter. Under the new Texas

laws, once DPS (or another law enforcement agency, including county and

local law enforcement officers) 36 apprehends an alien, the alien would appear

_____________________

33

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

34

Ante at 4 (emphasis added).

35

Ante at 5 (emphasis added).

36

See Tex. Code Crim. Proc. art. 5B.002(e)(2), (g); see also Tex. Civ.

Prac. & Rem. Code §§ 117.002, 117.003 (providing civil immunity for and

indemnification of local and state government officials, employees, and contractors who

enforce the newly created crimes in Chapter 51 of the Penal Code or the removal orders

issued under Article 5B.002).

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before a magistrate or judge. 37 There is no provision allowing state or local

law enforcement officers to hold an alien indefinitely so that they may pursue

an asylum or CAT claim. To the contrary, Texas law expressly provides that

removal or “return” proceedings must proceed even if an asylum or CAT

claim is pending. 38 But most importantly, by the time a “return” order is

issued by a state court, the time for resolving an affirmative defense based on

a “determination” of a federal claim will have passed. The injury to Las

Americas will have occurred long before a DPS officer carries out a “return”

order. Furthermore, Texas laws give no discretion to DPS officers when they

have a “return” order in hand.

To the extent the majority opinion refers to statements from attorneys

in the Attorney General’s office as to how removal orders would be enforced,

those representations do not bind anyone who has actual enforcement

authority, such as district and county attorneys, state district and county

court judges, and county and other local law enforcement officers. Texas law

is clear that, with limited exceptions not relevant here, the Texas constitution

does not permit the Attorney General of Texas to prosecute crimes under

Texas’s criminal laws “without the consent of the appropriate local county

or district attorney by a deputization order.” 39 The Texas laws at issue are

criminal laws. No one claims the Attorney General has been authorized by

any county or district attorney to enforce Texas’s immigration laws.

For an alien illegally present who is apprehended under state law and

does not have an affirmative defense (which are limited, as explained above),

the Texas immigration laws culminate in (1) an order requiring the alien to

_____________________

37

See Tex. Code Crim. Proc. art. 5B.002.

38

See id. art. 5B.003.

39

State v. Stephens, 663 S.W.3d 45, 55-56 (Tex. Crim. App. 2021).

46

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return to the foreign nation from which that person entered or attempted to

enter, 40 or (2) a fine or imprisonment, followed by an order requiring the alien

to return to the foreign nation from which that person entered or attempted

to enter. 41 Removal orders “must include . . . the manner of transportation

of the person to a port of entry” and “the law enforcement officer or state

agency responsible for monitoring compliance with the order.” 42 If an alien

“refuses to comply” with a removal order, they have committed a second

degree felony under the Texas immigration laws. 43

The Texas laws are clear. There is no “basic uncertainty about what

the law means and how it will be enforced,” as the majority opinion sug-

gests. 44 In Arizona, cited by the majority opinion, 45 the Supreme Court sus-

tained pre-enforcement, facial challenges to three of four state immigration

laws. 46 It did so based on the text of the statutes. The text of Texas’s entry

and removal laws is likewise sufficient to sustain the pre-enforcement facial

challenges before us.

In Arizona, the Supreme Court held that section 3 of the Arizona law

was field preempted. 47 It did so even though the state law not only mirrored

but cited federal law. There was no need to determine how a state would

enforce that law. Section 3 criminalized the “willful failure to complete or

_____________________

40

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

41

Id. (d).

42

Id. (e).

43

Tex. Penal Code § 51.04.

44

Ante at 5 n.8 (quoting Arizona v. United States, 567 U.S. 387, 415 (2012)).

45

Ante at 5 n.8.

46

See Arizona, 567 U.S. at 400-10.

47

Id. at 400-03.

47

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carry an alien registration document . . . in violation of 8 United States Code

§ 1304(e) or 1306(a).” 48 The Supreme Court held that “the Federal

Government has occupied the field of alien registration.” 49 The Court

explained, “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.” 50

The Supreme Court then held that section 5(C) of the Arizona law

was conflict preempted. 51 That statute “ma[de] it a state misdemeanor for

‘an unauthorized alien to knowingly apply for work, solicit work in a public

place or perform work as an employee or independent contractor’ in

Arizona. Violations [could] be punished by a $2,500 fine and incarceration

for up to six months.” 52 The Court explained that “[t]he legislative

background of IRCA underscores the fact that Congress made a deliberate

choice not to impose criminal penalties on aliens who seek, or engage in,

unauthorized employment.” 53 Again, there was no need to wait and see how

the state would interpret or enforce this law.

The Supreme Court further held that section 6 of the Arizona law un-

der scrutiny was preempted because it “create[d] an obstacle to the full

_____________________

48

Id. at 400 (quoting Ariz. Rev. Stat. Ann. § 13-1509(A) (2010)).

49

Id. at 401.

50

Id.

51

Id. at 406-07.

52

Id. at 403 (citation omitted) (quoting Ariz. Rev. Stat. Ann. § 13-2928(C)

(2010)).

53

Id. at 405.

48

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purposes and objectives of Congress.” 54 That law provided “that a state of-

ficer, ‘without a warrant, may arrest a person if the officer has probable cause

to believe . . . [the person] has committed any public offense that makes [him]

removable from the United States.’” 55 This provision is analogous to

Texas’s immigration laws, which allow state or local law enforcement agents

to arrest an alien entering Texas “from a foreign nation at any location other

than a lawful port of entry,” 56 and that directs a magistrate to take certain

actions that lead to removal “after making a determination that probable

cause exists for arrest for [illegal entry or illegal reentry].” 57 The Supreme

Court reasoned that the similar Arizona statute “would allow the State to

achieve its own immigration policy,” 58 and that “§ 6 creates an obstacle to

the full purposes and objectives of Congress.” 59 Again, there was no need to

await actual enforcement by Arizona before deciding the statute was facially

unconstitutional.

The Supreme Court finally considered section 2(B) in Arizona. That

statute “require[d] state officers to make a ‘reasonable attempt . . . to deter-

mine the immigration status’ of any person they stop, detain, or arrest on

some other legitimate basis if ‘reasonable suspicion exists that the person is

an alien and is unlawfully present in the United States.’” 60 “The law also

provide[d] that ‘[a]ny person who is arrested shall have the person’s

_____________________

54

Id. at 410.

55

Id. at 407 (alterations in original) (quoting Ariz. Rev. Stat. Ann.

§ 13-3883(A)(5) (2010)).

56

TEX. PENAL CODE § 51.02(a).

57

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

58

Arizona, 567 U.S. at 408.

59

Id. at 410.

60

Id. at 411 (quoting Ariz. Rev. Stat. Ann. § 11-1051(B) (2010)).

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immigration status determined before the person is released.’” 61 The Su-

preme Court recounted that “[t]he accepted way to perform these status

checks [was] to contact ICE, which maintains a database of immigration rec-

ords.” 62 It further explained that there were “[t]hree limits . . . built into the

state provision.” 63 The Supreme Court concluded that “if § 2(B) only re-

quires state officers to conduct a status check during the course of an author-

ized, lawful detention or after a detainee has been released, the provision

likely would survive preemption—at least absent some showing that it has

other consequences that are adverse to federal law and its objectives.” 64 Of

the four statutes facially challenged in Arizona, this is the only one where the

Court held the government “cannot prevail in its current challenge” because

“[t]here is a basic uncertainty about what the law means and how it will be

enforced. At this stage, without the benefit of a definitive interpretation from

the state courts, it would be inappropriate to assume § 2(B) will be construed

in a way that creates a conflict with federal law.” 65 However, all of the

Court’s concerns and how the state might allay them related to Fourth

Amendment issues. With regard to the state’s ability to apprehend aliens

under its own state laws, it is highly significant that the Supreme Court said,

“it would disrupt the federal framework to put state officers in the position of hold-

ing aliens in custody for possible unlawful presence without federal direction and

_____________________

61

Id. (second alteration in original) (quoting Ariz. Rev. Stat. Ann.

§ 11-1051(B) (2010)).

62

Id.

63

Id.

64

Id. at 414.

65

Id. at 415.

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supervision. The program put in place by Congress does not allow state or local of-

ficers to adopt this enforcement mechanism.” 66

JUDGE OLDHAM’s concurring opinion offers a hypothetical scenario

in which state law enforcement officers arrest illegal aliens from Nicaragua;

they are taken before a state magistrate judge and agree to return to Mexico

from whence they entered; a state court order is entered requiring the aliens

to return to Mexico; state officers transport them to a port of entry and de-

liver them to federal officials; and “CBP processes the aliens in accordance

with federal immigration law and the Convention Against Torture.” 67 This,

the concurring opinion says, is an example of an “application” of the state

laws that does not conflict with federal law. The Supreme Court said other-

wise in Arizona. 68 That is because, in the hypothetical in the OLDHAM opin-

ion, every action taken under state law (those of the arresting officers, the

magistrate, and the officers executing the return order) was taken without

“any request, approval, or other instruction from the Federal Govern-

ment.” 69 In Arizona, the Supreme Court concluded that § 6 of the Act,

which is analogous to the Texas entry, reentry and removal laws at issue here,

conflicted with federal immigration law for that reason, among others. 70 The

Supreme Court concluded that because § 6 permitted “the unilateral deci-

sion of state officers to arrest an alien for being removable absent any request,

approval, or other instructions from the Federal Government,” the state law

“authoriz[ed] state and local officials to engage in . . . enforcement matters

_____________________

66

Id. at 413 (emphasis added) (citation omitted).

67

Ante at 28.

68

Arizona v. United States, 567 U.S. 387 (2012).

69

See id. at 410.

70

Id. at 410.

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as a general matter,” which “create[ed] an obstacle to the full purposes and

objectives of Congress.” 71 There are other conflicts identified in Arizona

that are pertinent to the hypothetical that are addressed in part V(B) below.

The question that illuminates the conflict is this: what if Texas asked

the federal government to enter an agreement that would allow Texas officers

to arrest aliens they saw entering from Mexico at points other than a lawful

point of entry? Texas could offer to take the aliens before a Texas magistrate

to determine if they should be prosecuted under state law for trespass and—

if Texas decided not to prosecute—Texas law enforcement officers would

deliver them to federal immigration officials at a port of entry. In response to

Texas’s offer, the federal government said “no.” Could Texas then enact its

own immigration laws to do all of that anyway? I submit that the answer is

no, because that law would be conflict preempted, if not field preempted for

all of the reasons explained in Arizona. 72

The hypothetical in JUDGE OLDHAM’s concurring opinion fails for an-

other reason. It does not demonstrate a valid “application” of the state laws

at issue because it does not apply the state laws as they are written. The Texas

laws require that, “in lieu of continuing the prosecution” for illegal entry or

reentry, 73 a judge can issue an order requiring an alien to return to the foreign

nation from which they entered only if the order actually “require[s] the per-

son to return to that foreign nation.” 74 Texas law similarly requires the alien

to agree to the return order, that is, to agree to actually return to the nation

_____________________

71

Id.

72

See 567 U.S. at 407-410.

73

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

74

Id. art. 5B002(c).

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from which they entered. 75 Texas law follows through by requiring the return

order to identify “the law enforcement officer or state agency responsible for

monitoring compliance with the order.” 76 If aliens pursue Convention Against

Torture protection at the border to forestall their return to Mexico pursuant

to a Texas court return order, that would be in violation of their required

agreement under Texas law as well as the return order itself.

Additionally, nothing in Texas’s immigration laws permits a law en-

forcement officer to decide unilaterally to deliver aliens who are the subject

of a return order to federal authorities. Texas law does not contemplate that

state law enforcement officials can execute the return order by delivering al-

iens to federal authorities instead of “monitoring compliance with the or-

der.” 77 The record does contain an averment from a Texas Department of

Public Safety official that says, “Should DPS become aware that a detained

alien has a pending application for asylum or other relief with the federal gov-

ernment at the time of executing his order to return under SB 4, DPS intends

to coordinate with federal immigration authorities before executing the order

to return.” 78 That affidavit was prepared after this litigation was initiated.

Recognizing the strength of the preemption arguments the United States was

making at the time, the State argued that the Texas laws would not actually

be enforced as written. It is one thing to make that argument. It is quite

another to say that for purposes of a Salerno facial challenge inquiry, courts

must consider not what the statute actually says, but how state actors might

choose to ignore the text of state laws. Under Salerno, “the challenger must

_____________________

75

Id. art. 5B002(c)(1).

76

Id. art. 5B002(e)(2) (emphasis added).

77

Id.

78

ROA.316, ¶13.

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establish that no set of circumstances exists under which the Act would be

valid.” 79 That means the statute as written. It should be clear that when

Texas law specifically prohibits judges from abating prosecution for illegal

entry or reentry “on the basis that a federal determination regarding the im-

migration status of the defendant is pending or will be initiated,” 80 Texas law

does not permit a law enforcement officer charged with executing a return

order to decide to ignore the statutorily-required terms of a return order. If

law enforcement officers were to do so, that conduct would violate their duty

under the state’s immigration laws. Hypothesizing actions unauthorized by

the law’s text cannot support an argument that Texas’s immigration laws, as

they are written, can be validly enforced.

I turn to consideration of the issues before us in more detail.

I

In November 2023, the Texas legislature passed Senate Bill 4

(S.B. 4). 81 The bill’s preamble reflects that its purpose is to prohibit “the

illegal entry into or illegal presence in [the] state by” an alien. 82 The bill

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

persons who violate those prohibitions.” 83 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.” 84 Those and other

implementing laws are the primary focus of this appeal.

_____________________

79

United States v. Salerno, 481 U.S. 739, 745 (1987).

80

TEX. CODE CRIM. PROC. art. 5B.003 (emphasis added).

81

S.B. 4, 88th Leg., 4th C.S., ch. 2, 2023 Tex. Gen. Laws 4750.

82

Id.

83

Id.

84

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

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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.” 85 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. 86

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

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

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.” 87 This provision does

not identify any affirmative defenses. 88

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. 89 Under Texas Code of Criminal

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

_____________________

85

Tex. Penal Code § 51.02(a).

86

Id. § 51.02(c).

87

Id. § 51.03(a).

88

See id. § 51.03.

89

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

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order if “the person agrees to the order,” among other requirements. 90

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

defendant is convicted of either offense. 91 Failure to comply with an article

5B.002 order is a second-degree felony, 92 punishable by a fine of up to

$10,000 and up to twenty years of imprisonment. 93

Importantly, as already noted, 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.” 94

The district court granted a preliminary injunction precluding the

enforcement of the new laws promulgated in S.B. 4. The only defendant who

is a party to this appeal is the Director of the State of Texas Department of

Public Safety, Freeman F. Martin. Director Martin urges the en banc court

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

standing and that, on the merits, S.B. 4 is not preempted by federal law.

II

A threshold issue is standing. 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.” 95 To

establish standing, “a plaintiff must demonstrate (i) that she has suffered or

_____________________

90

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

91

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

92

Tex. Penal Code § 51.04.

93

Id. § 12.33.

94

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

95

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

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

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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.” 96 The injury “must be actual or imminent,

not speculative—meaning that the injury must have already occurred or be

likely to occur soon.” 97 “[W]hen a plaintiff seeks prospective relief such as

an injunction, the plaintiff must establish a sufficient likelihood of future

injury.” 98 The Supreme Court has recognized that only one plaintiff must

successfully demonstrate standing to satisfy Article III’s case-or-controversy

requirement. 99 Because I conclude Las Americas has standing, I do not

address whether either of the other two plaintiffs, American Gateways or the

County of El Paso, Texas, has standing.

A

Las Americas has established a cognizable Article III injury in fact

under Alliance for Hippocratic Medicine and Havens Realty. It has shown that

state immigration laws “directly affect[] and interfere[] with [Las

Americas]’s core business activities.” 100 The Supreme Court explained in

_____________________

96

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)).

97

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

98

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

99

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.”).

100

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

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Alliance for Hippocratic Medicine why there was organizational standing in

Havens Realty as follows:

Critically, HOME not only was an issue-advocacy

organization, but also operated a housing counseling service.

And when Havens 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.’ In 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. 101

The case before us is analogous. Las Americas is not only an issue-advocacy

organization—it operates to provide legal services and legal counseling to

low-income immigrants.

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.” 102 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.” 103 The Supreme

_____________________

101

Id. at 395 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 368 (1982)).

102

Id. at 394.

103

Id.

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

purposes. 104 The Court also explained that standing is not demonstrated just

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

actions.” 105 In contrasting what would establish causation of injury, the

Supreme Court pointed to its decision in Havens Realty. 106 The Court said,

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

operated a housing counseling service.” 107

Las Americas operates a counseling service for aliens, some of whom

would be apprehended or arrested under Texas’s immigration laws. But the

majority opinion contends that Havens Realty is distinguishable because “ʻIn

Havens, the defendant told falsehoods to the plaintiff [, which] thus suffered

a real, concrete and particularized injury, caused by the defendant. . . .’” 108

As discussed above, it is not entirely accurate to say that the unlawful

misrepresentation in Havens Realty was made to HOME, the plaintiff, which

was a “housing counseling organization.” 109 The representations in Havens

Realty were made to an individual whom HOME had hired as a “tester

plaintiff.” 110 The tester plaintiff, who was black, told Havens Realty, the

owner of two apartment buildings, that he was seeking housing, 111 though in

_____________________

104

See id.

105

Id. at 395.

106

Id. (citing Havens Realty, 455 U.S. at 379).

107

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

108

Ante at 9 (quoting the dissenting opinion when this case was before a panel,

United States v. Texas, 144 F.4th 632, 698 (5th Cir. 2025) (OLDHAM, J., dissenting)

(emphasis in original)).

109

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

110

Havens Realty, 455 U.S. at 368.

111

Id. at 368.

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actuality, he was not. 112 Havens Realty falsely said no apartments were

available. 113 The same day, Havens Realty told a white tester for HOME that

apartments were available. 114 In the ensuing suit HOME filed against Havens

Realty, it alleged

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 HOME has had to devote significant resources to

identify and counteract the defendant’s [sic] racially

discriminatory steering practices. 115

The Supreme Court held in Havens Realty that

If, as broadly alleged, petitioners’ steering practices

have perceptibly impaired HOME’s ability to provide

counseling and referral services for low-and moderate-income

homeseekers, there can be no question that the organization

has suffered injury in fact. Such 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. 116

_____________________

112

Id. at 373 (explaining that “[i]n the present context, ‘testers’ 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.”).

113

Id. at 368.

114

Id.

115

Id. at 379 (alteration in original).

116

Id.

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Forty-two years later, the Supreme Court reaffirmed this reasoning.

It explained in Hippocratic Medicine that HOME adequately alleged its

counseling business was injured for purposes of standing because the

misrepresentation, which amounted to racial steering, “perceptibly impaired

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

moderate-income homeseekers.’” 117

Las Americas operates a legal counseling service and has similarly

alleged that aspects of Texas’s preempted immigration laws would

perceptibly impair its ability to provide counseling and legal representation

to low-income aliens seeking to pursue relief under federal immigration law.

B

Facts in the record before us support Las Americas’s allegations of

injury. Las Americas is a nonprofit legal services organization based in El

Paso, Texas. 118 It has provided legal, counseling, and referral services to

immigrants for more than thirty-seven years, since 1987. 119 Its “staff consists

of 15 people, including attorneys, accredited representatives, and paralegals.

Two additional staff work in Mexico.” 120 Its total budget in the fiscal year

ending 2023 was approximately $1.4 million. 121

Las Americas submitted an affidavit that says it 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]

_____________________

117

FDA v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024) (quoting Havens

Realty, 455 U.S. at 379).

118

ROA.935, ¶ 3.

119

ROA.937, ¶ 10.

120

ROA.938, ¶ 16.

121

ROA.938, ¶ 15.

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individuals are not wrongfully removed to persecution or torture.” 122 It

“provide[s] immigration counseling and representation to immigrants

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.” 123 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).” 124 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.” 125

“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.” 126

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

_____________________

122

ROA.935, ¶ 3.

123

ROA.935, ¶ 4.

124

ROA.935-36, ¶ 4.

125

ROA.939, ¶ 18.

126

ROA.939, ¶ 18 (emphasis omitted).

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federal law provides.” 127 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.” 128 Las Americas’s success in

helping state detainees obtain relief under federal immigration laws is also

likely to be significantly less than when it represents federal detainees, due to

the different procedures required by the new state immigration laws. 129 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. 130

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.” 131 Las Americas counsels and

represents immigrants in CBP or ICE detention 132 and has immigrant clients

who are not in detention. 133 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.” 134 Las

_____________________

127

ROA.948, ¶ 56.

128

ROA.942, ¶ 32.

129

ROA.945-48.

130

ROA.945-48.

131

ROA.940, ¶ 22.

132

ROA.941, ¶ 28.

133

ROA.941, ¶ 26.

134

ROA.941, ¶ 28.

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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.” 135

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

system.” 136 The impact of S.B. 4 on Las Americas’s delivery of services is

direct.

Las Americas avers that it must prioritize among 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.” 137 To that end, it “focus[es] on assistance to those facing

summary removal in expedited removal proceedings.” 138 In the past, Las

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

changes in federal policies.” 139 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,

_____________________

135

ROA.941, ¶ 28.

136

ROA.940, ¶ 23.

137

ROA.937, ¶ 12.

138

ROA.937, ¶ 13.

139

ROA.937, ¶ 13.

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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. 140

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.” 141

The new Texas immigration laws also give rise to 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. 142

The state laws would seek to 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. 143 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.” 144

_____________________

140

ROA.938, ¶ 14.

141

ROA.938, ¶ 14.

142

ROA.314-15, ¶¶ 3-4.

143

See infra pp. 124-25, 134-35.

144

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

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Las Americas has also alleged a direct economic injury. It has 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.” 145 At a minimum, the cost of developing new

materials and training staff to facilitate legal counseling and representation of

those detained under Texas’s new immigration laws is an economic, dollars

and cents injury. “For standing purposes, a loss of even a small amount of

money is ordinarily an ‘injury.’ ” 146 The new Texas immigration regulatory

scheme would increase the time and resources focused on those detained

under the new state laws.

Las Americas has sufficiently demonstrated S.B. 4 “directly affect[s]

and interfere[s] with [Las Americas]’s core business activities.” 147 It has

accordingly demonstrated injury in fact under Alliance for Hippocratic

Medicine.

C

Las Americas has demonstrated causation. A plaintiff must show that

“the injury likely was caused or will be caused by the defendant.” 148 “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.’” 149 The

Supreme Court has said, however, that “plaintiffs attempting to show

_____________________

145

ROA.943, ¶ 35.

146

Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464, 137 (2017).

147

FDA v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024).

148

Id. at 380.

149

Id. at 383 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992)).

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causation generally cannot ‘rely on speculation about the unfettered choices

made by independent actors not before the courts.’” 150 “[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.” 151 “The causation requirement precludes speculative links—

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

to government action.” 152

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.” 153 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?” 154

DPS has the authority to arrest and detain illegal immigrants under

S.B. 4. The Director intends to authorize DPS to exercise that authority. 155

The Director of DPS at the time S.B. 4 was debated in the Texas Legislature

predicted that DPS would arrest large numbers of illegal immigrants under

the new laws. Then-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 to an additional 75,000 to 80,000

_____________________

150

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

151

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

152

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)).

153

Id. at 385 n.2.

154

Id.

155

ROA.314-15, ¶¶ 3-9; ROA.959-60, ¶ 10.

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arrests per year in Texas. 156 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. 157 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.” 158 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.” 159

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

that has the capacity for 1,100 inmates. 160

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

_____________________

156

ROA.959-60, ¶ 10 & n.1 (citing Tex. S. Comm. 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)).

157

ROA.314-16.

158

ROA.314, ¶ 3.

159

ROA.315, ¶ 4.

160

See Sanchez (RZ), Tex. Dep’t of Crim. Just.,

https://www.tdcj.texas.gov/

unit_directory/rz.html [https://perma.cc/86QF-BAUN].

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represents who are housed in federal facilities. 161 The difficulty is not only a

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

contacts and procedures to coordinate with completely separate state

personnel. 162

D

Las Americas has shown redressability. Las Americas seeks, and the

district court granted, a preliminary injunction against Director Martin,

enjoining him from enforcing Texas’s new immigration laws. DPS, under

Director Martin’s leadership, would make arrests under S.B. 4. 163 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. 164

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], 165 and others to stem the

_____________________

161

ROA.941-43.

162

ROA.943-44.

163

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

Office of Texas Governor Greg Abbott).

164

ROA.288, ¶ 35.

165

ROA.282, ¶ 9.

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flow of unlawful immigration.” 166 However, as discussed above, it is DPS,

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

efforts. 167 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.” 168 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

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.

* * *

In sum, I would hold Las Americas has established each element of

standing.

III

Director Martin is represented by the same counsel that represented

the State of Texas and other state defendants. He did not file separate briefs.

After the United States dismissed its suit, Director Martin is the only

_____________________

166

ROA.286, ¶ 27.

167

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

Department of Public Safety).

168

ROA.315, ¶ 4.

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remaining state officer that is a defendant, and he is the only remaining

appellant.

In addition to standing, the Director raised a second jurisdictional

issue. In the district court, he suggested that this case presents a

nonjusticiable political question. 169 The Director likewise gestured toward

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

preserve the issue, 170 the political question doctrine is a “jurisdictional

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

requirement of Art. III.” 171 “Unlike most arguments, challenges to subject-

matter jurisdiction” must be considered by courts “sua sponte.” 172

“Chief Justice Marshall famously wrote that it is ‘the

province and duty of the judicial department to say what the law is.’” 173

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

_____________________

169

ROA.236.

170

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”).

171

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,

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.”).

172

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

173

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

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

174

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

opinion)).

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

beyond the courts’ jurisdiction.” 175 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.’” 176

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

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. 177

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. 178 The Supreme Court has recognized that the

_____________________

175

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

176

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

217).

177

U.S. Const. art. I, § 10, cl. 3.

178

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

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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.” 179

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, 180 the Court explained that evaluating the constitutionality of

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

political determination exists somewhere in the case. 181 In Zivotofsky, a

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

in Jerusalem record the place of birth as Israel. 182 But the State Department

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

reflected Jerusalem as his place of birth. 183 The district court and the D.C.

Circuit held that the resulting case presented a nonjusticiable political

question. 184 The Supreme Court reversed. 185 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

_____________________

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

nonjusticiable).

179

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

180

566 U.S. 189 (2012).

181

Id. at 197-98; 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).

182

Zivotofsky, 566 U.S. at 191.

183

Id. at 192-93.

184

Id. at 193-94.

185

Id. at 194.

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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. 186

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 be ordered to issue Zivotofsky a passport that complies

with [the statute]. Either way, the political question doctrine

is not implicated. 187

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

Americas claims that statutes enacted under S.B. 4 may not be

constitutionally enforced because they are preempted by federal law. One of

the reasons Director Martin contends that Texas’s arrest and removal laws

may lawfully be enforced is because the statutes are 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.” 188

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

Director does not disrupt this usual order. In Sterling v. Constantin, 189 the

Governor of Texas had issued a proclamation stating that certain Texas

_____________________

186

Id. at 196.

187

Id.

188

Id. at 201.

189

287 U.S. 378 (1932).

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counties were in a state of insurrection, and he directed the Texas National

Guard to limit production of oil in those counties. 190 Oil-leasehold owners

sued, alleging, among other things, violations of the Due Process Clause. 191

A court enjoined the Governor, and he 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 conflicting rights of

property and unreviewable through the judicial power of the federal

government.” 192 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. 193

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.” 194 The Court remarked that it was “well established”

_____________________

190

Id. at 387-88.

191

Id. at 387.

192

Id. at 397.

193

Id. at 397-98.

194

Id. at 400.

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

been overstepped in a particular case, are judicial questions.” 195

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

nonjusticiable. It calls upon the court 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.” 196

IV

Since I conclude this case is justiciable, I would reach the merits. “A

preliminary injunction is an extraordinary remedy never awarded as of

right.” 197 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.” 198 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.’” 199 “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.” 200

_____________________

195

Id. at 401.

196

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

197

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

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

198

Id. at 20.

199

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

200

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)).

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This court reviews the district court’s grant of a preliminary

injunction for abuse of discretion. 201 A district court

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