# United States v. State of Texas

> Court of Appeals for the Fifth Circuit · April 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11315316

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 24, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** United States Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11315316

## Opinion text

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.
Case: 24-50149 Document: 441-1 Page: 2 Date Filed: 04/24/2026

______________________________

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.

2
Case: 24-50149 Document: 441-1 Page: 3 Date Filed: 04/24/2026

No. 24-50149

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

_____________________
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
Case: 24-50149 Document: 441-1 Page: 4 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 5 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 6 Date Filed: 04/24/2026

No. 24-50149

“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
Case: 24-50149 Document: 441-1 Page: 7 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 8 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 9 Date Filed: 04/24/2026

No. 24-50149

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

9
Case: 24-50149 Document: 441-1 Page: 10 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 11 Date Filed: 04/24/2026

No. 24-50149

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,

_____________________
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
Case: 24-50149 Document: 441-1 Page: 12 Date Filed: 04/24/2026

No. 24-50149

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.

_____________________
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).

12
Case: 24-50149 Document: 441-1 Page: 13 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 14 Date Filed: 04/24/2026

No. 24-50149

& 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

14
Case: 24-50149 Document: 441-1 Page: 15 Date Filed: 04/24/2026

No. 24-50149

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

15
Case: 24-50149 Document: 441-1 Page: 16 Date Filed: 04/24/2026

No. 24-50149

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

16
Case: 24-50149 Document: 441-1 Page: 17 Date Filed: 04/24/2026

No. 24-50149

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

17
Case: 24-50149 Document: 441-1 Page: 18 Date Filed: 04/24/2026

No. 24-50149

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

18
Case: 24-50149 Document: 441-1 Page: 19 Date Filed: 04/24/2026

No. 24-50149

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).

19
Case: 24-50149 Document: 441-1 Page: 20 Date Filed: 04/24/2026

No. 24-50149

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.

20
Case: 24-50149 Document: 441-1 Page: 21 Date Filed: 04/24/2026

No. 24-50149

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

21
Case: 24-50149 Document: 441-1 Page: 22 Date Filed: 04/24/2026

No. 24-50149

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.”).

22
Case: 24-50149 Document: 441-1 Page: 23 Date Filed: 04/24/2026

No. 24-50149

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

23
Case: 24-50149 Document: 441-1 Page: 24 Date Filed: 04/24/2026

No. 24-50149

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

24
Case: 24-50149 Document: 441-1 Page: 25 Date Filed: 04/24/2026

No. 24-50149

_____________________
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).

25
Case: 24-50149 Document: 441-1 Page: 26 Date Filed: 04/24/2026

No. 24-50149

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.

26
Case: 24-50149 Document: 441-1 Page: 27 Date Filed: 04/24/2026

No. 24-50149

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

27
Case: 24-50149 Document: 441-1 Page: 28 Date Filed: 04/24/2026

No. 24-50149

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

28
Case: 24-50149 Document: 441-1 Page: 29 Date Filed: 04/24/2026

No. 24-50149

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).

29
Case: 24-50149 Document: 441-1 Page: 30 Date Filed: 04/24/2026

No. 24-50149

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).

30
Case: 24-50149 Document: 441-1 Page: 31 Date Filed: 04/24/2026

No. 24-50149

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).

31
Case: 24-50149 Document: 441-1 Page: 32 Date Filed: 04/24/2026

No. 24-50149

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

32
Case: 24-50149 Document: 441-1 Page: 33 Date Filed: 04/24/2026

No. 24-50149

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).

33
Case: 24-50149 Document: 441-1 Page: 34 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 35 Date Filed: 04/24/2026

No. 24-50149

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

35
Case: 24-50149 Document: 441-1 Page: 36 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 37 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 38 Date Filed: 04/24/2026

No. 24-50149

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).

38
Case: 24-50149 Document: 441-1 Page: 39 Date Filed: 04/24/2026

No. 24-50149

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.

39
Case: 24-50149 Document: 441-1 Page: 40 Date Filed: 04/24/2026

No. 24-50149

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).

40
Case: 24-50149 Document: 441-1 Page: 41 Date Filed: 04/24/2026

No. 24-50149

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).

41
Case: 24-50149 Document: 441-1 Page: 42 Date Filed: 04/24/2026

No. 24-50149

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

42
Case: 24-50149 Document: 441-1 Page: 43 Date Filed: 04/24/2026

No. 24-50149

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.

43
Case: 24-50149 Document: 441-1 Page: 44 Date Filed: 04/24/2026

No. 24-50149

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).

44
Case: 24-50149 Document: 441-1 Page: 45 Date Filed: 04/24/2026

No. 24-50149

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).

45
Case: 24-50149 Document: 441-1 Page: 46 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 47 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 48 Date Filed: 04/24/2026

No. 24-50149

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
Case: 24-50149 Document: 441-1 Page: 49 Date Filed: 04/24/2026

No. 24-50149

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)).

49
Case: 24-50149 Document: 441-1 Page: 50 Date Filed: 04/24/2026

No. 24-50149

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.

50
Case: 24-50149 Document: 441-1 Page: 51 Date Filed: 04/24/2026

No. 24-50149

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.

51
Case: 24-50149 Document: 441-1 Page: 52 Date Filed: 04/24/2026

No. 24-50149

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).

52
Case: 24-50149 Document: 441-1 Page: 53 Date Filed: 04/24/2026

No. 24-50149

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.

53
Case: 24-50149 Document: 441-1 Page: 54 Date Filed: 04/24/2026

No. 24-50149

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).

54
Case: 24-50149 Document: 441-1 Page: 55 Date Filed: 04/24/2026

No. 24-50149

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).

55
Case: 24-50149 Document: 441-1 Page: 56 Date Filed: 04/24/2026

No. 24-50149

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)).

56
Case: 24-50149 Document: 441-1 Page: 57 Date Filed: 04/24/2026

No. 24-50149

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.

57
Case: 24-50149 Document: 441-1 Page: 58 Date Filed: 04/24/2026

No. 24-50149

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.

58
Case: 24-50149 Document: 441-1 Page: 59 Date Filed: 04/24/2026

No. 24-50149

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.

59
Case: 24-50149 Document: 441-1 Page: 60 Date Filed: 04/24/2026

No. 24-50149

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.

60
Case: 24-50149 Document: 441-1 Page: 61 Date Filed: 04/24/2026

No. 24-50149

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.

61
Case: 24-50149 Document: 441-1 Page: 62 Date Filed: 04/24/2026

No. 24-50149

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).

62
Case: 24-50149 Document: 441-1 Page: 63 Date Filed: 04/24/2026

No. 24-50149

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.

63
Case: 24-50149 Document: 441-1 Page: 64 Date Filed: 04/24/2026

No. 24-50149

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11315316. Public record. Not legal advice.