Emergency Application — United States, Applicant v. Texas, et al.
Supreme Court briefMar 4, 2024
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No. 23A____
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
UNITED STATES OF AMERICA, APPLICANT
v.
STATE OF TEXAS, ET AL.
_______________
APPLICATION TO VACATE STAY OF PRELIMINARY INJUNCTION
ISSUED BY THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
PARTIES TO THE PROCEEDING
Applicant, plaintiff-appellee below, is the United States of
America.
Respondents, defendants-appellants below, are the State of
Texas; Greg Abbott in his official capacity as Governor of Texas;
the Texas Department of Public Safety; and Steven C. McCraw in his
official capacity as Director of the Texas Department of Public
Safety.
The plaintiffs-appellees in the consolidated case below are
American Gateways; the County of El Paso, Texas; and Las Americas
Immigrant Advocacy Center.
The defendants-appellants in the consolidated case below are
Steven C. McCraw in his official capacity as Director of the Texas
Department of Public Safety and Bill D. Hicks in his official
capacity as District Attorney for the 34th Judicial District of
Texas.
RELATED PROCEEDINGS
United States District Court (W.D. Tex.):
United States v. Texas, No. 24-cv-8 (Feb. 29, 2024)
Las
Americas
Immigrant
Advocacy
Ctr.
et
al.
v.
No. 23-cv-1537 (Feb. 29, 2024)
United States Court of Appeals (5th Cir.):
United States v. Texas, No. 24-50149 (Mar. 2, 2024)
McCraw,
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23A____
UNITED STATES OF AMERICA, APPLICANT
v.
STATE OF TEXAS, ET AL.
_______________
APPLICATION TO VACATE STAY OF PRELIMINARY INJUNCTION
ISSUED BY THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________
Pursuant to Rule 23 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the
United States of America, respectfully applies for vacatur of the
stay issued on March 2, 2024, by the United States Court of Appeals
for the Fifth Circuit (App., infra, 1a-2a).
This suit was brought by the United States to enjoin the
enforcement of a new Texas law, Senate Bill 4 (SB4), that would
directly regulate the entry and removal of noncitizens. SB4, which
was to go into effect on March 5, 2024, would impose state criminal
penalties on noncitizens who unlawfully enter or reenter Texas
from Mexico and would require Texas courts to order the removal of
those noncitizens to Mexico without Mexico’s consent and without
observing the substantive or procedural requirements of federal
law governing removal.
SB4 is flatly inconsistent with this
2
Court’s decision in Arizona v. United States, 567 U.S. 387 (2012),
and more than a century of this Court’s precedents.
Those deci-
sions recognize that the authority to admit and remove noncitizens
is a core responsibility of the National Government, and that where
Congress has enacted a law addressing those issues, state law is
preempted.
The district court adhered to those principles and
granted a preliminary injunction preventing enforcement of SB4.
Respondents appealed and moved for a stay pending appeal and
an immediate administrative stay. Less than 24 hours later, before
the United States had filed a full response to the stay motion,
the court of appeals granted what it called an “administrative
stay,” stayed the effect of that stay for seven days “pending an
application to the Supreme Court of the United States,” expedited
the appeal, and deferred the motion for a stay pending appeal to
the merits panel.
App., infra, 2a.
Absent this Court’s intervention, SB4 will go into effect at
12:01 a.m. on March 10, 2024, profoundly altering the status quo
that has existed between the United States and the States in the
context of immigration for almost 150 years.
And despite the 114-
page district court opinion detailing multiple independent reasons
why the law is invalid, that disruptive change would occur without
any reasoned ruling by the court of appeals.
Instead, by purport-
ing to grant an “administrative” stay but deferring action on the
underlying stay motion indefinitely, the court effectively granted
a stay pending appeal without engaging in the necessary consider-
3
ation of likelihood of success on the merits, the balance of harms,
or the public interest.
Each of those factors makes clear that no
stay is warranted here.
On the merits, SB4 is both field and conflict preempted. This
Court has long recognized that the regulation of entry and removal
of noncitizens is inseparably intertwined with the conduct of foreign relations and thus vested “solely in the Federal Government.”
Truax v. Raich, 239 U.S. 33, 42 (1915).
In the Immigration and
Nationality Act (INA), 8 U.S.C. 1101 et seq., Congress has created
a comprehensive regime governing the admission and removal of
noncitizens. And because the federal government has fully occupied
the field of entry and removal, even “complementary state regulation” is preempted.
See Arizona, 567 U.S. at 401.
Just as Arizona
could not “add[] a state-law penalty” for failure to comply with
the INA’s registration requirements, Texas may not impose statelaw criminal penalties for violations of federal entry and reentry
provisions and may not implement state-law “decision[s] on removability.” Id. at 409. Those matters are committed to the National
Government because, inter alia, they “touch on foreign relations.”
Id. at 401, 409.
Indeed, because entry and removal are so central
to federal immigration authority, the preemptive force of federal
law is even plainer in this case than it was in Arizona.
SB4 also conflicts with federal law in multiple respects.
It
prevents the Nation from speaking “with one voice” in matters
involving foreign affairs.
Arizona, 567 U.S. at 409.
It exceeds
4
the carefully limited circumstances in which Congress has authorized state officers to perform the functions of federal immigration
officers or otherwise assist those officers in performing their
duties.
It disregards the INA’s reticulated procedures for making
removal determinations.
It provides for prosecution of nonciti-
zens for violating prohibitions on entry or reentry, thus intruding
upon federal immigration officers’ determinations regarding how to
address a particular noncitizen’s circumstances -- e.g., by immediately removing rather than prosecuting the noncitizen.
And it
requires state judges to order noncitizens removed to Mexico without Mexico’s consent and without adhering to the congressionally
mandated process for selecting the country of removal.
SB4 also violates the Foreign Commerce Clause.
Like the
Interstate Commerce Clause, that Clause encompasses regulation of
the movement of persons across territorial borders.
States v. Guest, 383 U.S. 745, 758-759 (1966).
See United
And it bars state
laws that prevent the federal government from speaking with one
voice in matters involving foreign affairs, as SB4 manifestly does.
See Japan Line Ltd. v. Los Angeles Cnty., 441 U.S. 434, 451 (1979).
In response to the obvious legal infirmities of its law, Texas
has taken the extraordinary and unprecedented position that at
least some applications of SB4 are valid under the State War Clause
of the Constitution, which generally prohibits States from “engag[ing] in War,” with a narrow exception when a State is “actually
invaded, or in such imminent Danger as will not admit of delay.”
5
U.S. Const. Art. I, § 10, Cl. 3.
here.
That Clause has no application
A surge of unauthorized immigration plainly is not an in-
vasion within the meaning of the State War Clause.
And even if it
were, the Clause does not permit States to contradict the federal
government’s considered response to any invasion that has occurred.
Here, Congress has taken that subject fully in hand by
enacting the INA, and the State War Clause does not exempt Texas
from the Supremacy Clause or the preemption principles it embodies.
The balance of harms and the public interest overwhelmingly
support vacating the court of appeals’ stay and preserving the
status quo while this litigation proceeds.
By allowing Texas to
remove noncitizens to Mexico without its consent, SB4 would have
significant and immediate adverse effects on the United States’
relationship with Mexico -- a relationship that is critical to the
federal government’s ability to effectively address immigration at
the southwest border.
SB4 would harm the federal government’s
relationship with other countries and prevent the United States
from conducting assessments under treaties concerning removal to
countries where the noncitizen may be persecuted or tortured.
And
beyond its disruptive foreign relations effects, SB4 would create
chaos in the United States’ efforts to administer federal immigration laws in Texas.
Texas faces no remotely comparable harms from the preliminary
injunction.
Vacating the stay will merely preserve the longstand-
ing status quo while the litigation proceeds, just as the relevant
6
provisions of the state law in Arizona were enjoined throughout
the litigation in that case.
See 567 U.S. at 394.
Both the law
and the equities overwhelmingly favor the same result here.
We respectfully request that this Court act on this application before the court of appeals’ stay of its own order expires
and SB4 is permitted to take effect at 12:01 a.m. on Sunday, March
10.
Alternatively, if the Court does not act by then, we respect-
fully request the Court extend the court of appeals’ seven-day
stay to preserve the status quo pending the Court’s consideration
of the application.
STATEMENT
A.
Background
1.
The INA establishes a comprehensive federal statutory
regime for the regulation of immigration.
Congress granted the
Attorney General and the Secretary of Homeland Security (Secretary) the authority to administer that regime.
and (g); 6 U.S.C. 251.
8 U.S.C. 1103(a)
As relevant here, the INA sets forth a
comprehensive framework with detailed rules governing the entry
and removal of noncitizens.1
It identifies who may and may not be
admitted to the United States, see, e.g., 8 U.S.C. 1181, 1182,
1188; prescribes how noncitizens may enter the country lawfully,
see, e.g., 8 U.S.C. 1223-1225; and imposes penalties on those who
unlawfully enter or reenter the country, see 8 U.S.C. 1325, 1326.
This application uses the term “noncitizen” as equivalent to the statutory term “alien.” See Barton v. Barr, 140 S.
Ct. 1442, 1446 n.2 (2020) (quoting 8 U.S.C. 1103(a)(3)).
1
7
The INA also comprehensively governs the removal of noncitizens.
Congress provided for formal removal proceedings to be
conducted before the Immigration Court, a specialized tribunal in
the Department of Justice.
With limited exceptions for other
federally initiated procedures, the formal removal proceedings are
the “sole and exclusive procedure for determining whether an alien
may be * * * removed from the United States.” 8 U.S.C. 1229a(a)(3).
Only federal officials acting on behalf of the Secretary may initiate such proceedings.
8 C.F.R. 239.1(a).
Federal law estab-
lishes the grounds on which a noncitizen may be ordered removed,
the requirements for commencing and administering proceedings, and
the procedural protections afforded to noncitizens, see, e.g., 8
U.S.C. 1182(a), 1225, 1227(a), 1228, 1229, 1229a.
Congress also
provided various grounds on which a noncitizen may apply for relief
or protection from removal, including asylum, withholding of removal, and protections under Article 3 of the Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture or Convention), see, e.g., 8
U.S.C. 1158(a) and (b), 1231(b)(3), 1232; 8 C.F.R. 208.16(c)208.18, 1208.16(c)-1208.18.
The Executive Branch has discretion
to grant various other forms of relief from removal, including
cancellation of removal and adjustment to lawful-permanent-resident status.
See, e.g., 8 U.S.C. 1229b(a) and (b), 1255.
One of the exceptions to the application of formal removal
proceedings is the procedure for expedited removal of certain
8
noncitizens arriving in the United States.
See DHS v. Thuraissi-
giam, 140 S. Ct. 1959, 1964-1966 (2020).
The expedited-removal
procedure authorizes immediate removal of covered noncitizens, but
provides for an interview by a DHS asylum officer and review by an
Immigration Judge if a noncitizen expresses fear of persecution or
the intent to seek asylum.
See 8 U.S.C. 1225(b)(1).
The INA also establishes the method for determining the country to which a noncitizen may be removed.
See 8 U.S.C. 1231 (b).
DHS has the responsibility to work with foreign governments to
determine whether they will accept noncitizens who are subject to
removal orders.
See 8 U.S.C. 1231(b)(1) and (2); 8 C.F.R. 241.15;
see also 8 U.S.C. 1158(a)(2)(A).
And federal law imposes partic-
ular limits on removing a noncitizen to a “foreign territory contiguous to the United States” when the noncitizen is not a “native,
citizen, subject, or national of,” or prior resident of, that
territory.
8 U.S.C. 1231(b)(2)(B).
The INA expressly contemplates several ways in which state
and local officers may assist or cooperate with federal officials
in their enforcement of the INA.
State and local law-enforcement
officers are expressly authorized to make arrests for violations
of the INA’s prohibitions against smuggling, transporting, or harboring noncitizens.
See 8 U.S.C. 1324(c).
Similarly, state and
local officers may (if authorized by state law) arrest and detain
a noncitizen who is illegally present in the United States if the
noncitizen was previously convicted of a felony in the United
9
States and then was deported or left the United States.
1252c.
8 U.S.C.
That express authority is conditioned, however, on receiv-
ing prior confirmation from federal immigration officials of the
noncitizen’s status, and detention may extend no longer than necessary for federal officers to take the noncitizen into custody
for purposes of removal proceedings.
8 U.S.C. 1252c(a).
In ad-
dition, if the Secretary determines that an actual or imminent
mass influx of noncitizens presents urgent circumstances requiring
an immediate federal response, he may authorize any state or local
officer (with the permission of the officer’s agency) to exercise
the authority of federal immigration officers.
See 8 U.S.C.
1103(a)(10).
Congress has also authorized DHS to enter into formal cooperative agreements with States and localities.
8 U.S.C. 1357(g).
Under those agreements, appropriately trained and qualified state
and local officers may perform specified functions of a federal
immigration officer in relation to the investigation, apprehension, or detention of noncitizens.
8 U.S.C. 1357(g)(1)-(9).
The
state officers’ activities under those agreements “shall be subject
to
the
direction
8 U.S.C. 1357(g)(3).2
and
supervision
of
the
[Secretary].”
And even absent such a formal agreement,
the INA provides that state and local officers may “communicate
with the [Secretary] regarding the immigration status of any in-
Section 1357 refers to the Attorney General, but those
functions have been transferred to the Secretary. 6 U.S.C. 251(2).
2
10
dividual,” or “otherwise
* * *
cooperate with the [Secretary] in
the identification, apprehension, detention, or removal of aliens
not lawfully present in the United States.”
2.
8 U.S.C. 1357(g)(10).
Against the backdrop of that comprehensive framework,
Texas adopted its own immigration law, SB4, with an effective date
of March 5, 2024.
Three provisions of SB4 are relevant here.
First, SB4 effectively makes it a state crime for a noncitizen
to violate 8 U.S.C. 1325(a), the INA’s criminal unlawful-entry
provision, by barring noncitizens from “enter[ing] or attempt[ing]
to enter [Texas] directly from a foreign nation at any location
other than a lawful port of entry.”
Tex. Penal Code § 51.02(a).
It is an affirmative defense to violations of that provision if
“the federal government has granted the defendant
presence in the United States” or “asylum.”
* * *
lawful
Id. § 51.02(c).
Vi-
olations of Section 51.02 are Class B misdemeanors, punishable by
fines up to $2000 and 180 days of imprisonment.
51.02(b).
Id. § 12.22,
If a noncitizen has previously been convicted under
that section, a subsequent violation is a felony, punishable by
fines up to $10,000 and 180 days to two years of imprisonment.
Id. § 12.35, 51.02(b).
Second,
1326(a),
the
SB4
creates
federal
a
state
unlawful
crime
reentry
paralleling
provision,
by
8
U.S.C.
barring
noncitizens from “enter[ing], attempt[ing] to enter,” or being
“found in” Texas after they have “been denied admission to” the
United States, have been removed from the United States, or have
11
departed the United States while an order of “removal is outstanding.”
Tex. Penal Code § 51.03(a).
SB4 provides no affirmative
defenses for a violation of Section 51.03.
Violations are Class
A misdemeanors, punishable by fines up to $4000 and imprisonment
for up to one year.
Id. § 12.21, 51.03(b).
Third, SB4 allows a state judge to order the removal of a
noncitizen under certain circumstances.
5B.002.
Tex. Code Crim. P. art.
In particular, when a person is charged with offenses
under Section 51.02 or 51.03 but not yet convicted, a state judge
may “discharge the person and require the person to return to the
foreign nation from which the person entered or attempted to enter”
if “the person agrees to the order” and has not “previously been”
charged with or convicted of specific crimes.
Art. 5B.002(a)-(c).
If a noncitizen is convicted under SB4, the state judge “shall
enter” an “order requiring the person to return to the foreign
nation from which the person entered or attempted to enter” after
completion of the state prison sentence.
Art. 5B.002(d).
Texas
law-enforcement personnel must monitor the noncitizen’s compliance
with the state removal order.
Art. 5B.002(e).
Failure to comply
with the order is a second-degree felony. Tex. Penal Code § 51.04.
For any of the offenses created by SB4, the law states that
a “court may not abate the prosecution of [the relevant offense]
on the basis that a federal determination regarding the immigration
status of the defendant is pending or will be initiated.”
Code Crim. P. art. 5B.003.
Tex.
12
B.
Proceedings Below
1.
In separate suits, the United States and a set of plain-
tiffs comprising the County of El Paso and two private groups
challenged SB4 in the District Court for the Western District of
Texas.
App., infra, 5a.
The United States and the other plain-
tiffs moved for preliminary injunctions preventing the implementation of SB4, and the district court consolidated the cases.
at 4a.
Id.
In a thorough 114-page opinion, the court granted a pre-
liminary injunction and declined to stay the injunction pending
appeal.
Id. at 3a-116a.
The district court first rejected Texas’s threshold arguments.
App., infra, 12a-31a.
The court held that the private
plaintiffs have standing, id. at 12a-24a; rejected Texas’s contention that certain defendants had sovereign immunity, id. at
24a-26a; held that the United States is entitled to bring a suit
for equitable relief against the State, id. at 27a-29a; and declined to abstain from deciding the motions, id. at 29a-31a.
Turning to the merits, the district court held that the United
States and the private plaintiffs are likely to succeed on the
merits of their claims that SB4 is field preempted, conflict
preempted, and inconsistent with the Foreign Commerce Clause.
App., infra, 31a-67a.
With respect to field preemption, the court
explained that “over a century of Supreme Court cases” recognize
the federal government’s dominant interest in regulating entry and
removal of noncitizens, id. at 32a; that Congress occupied the
13
field by enacting a comprehensive framework governing entry and
removal of noncitizens, see id. at 35a-38a; and that this Court
has squarely rejected state attempts to enact “the sort of ‘concurrent’ criminalization that Texas seeks to impose,” id. at 38a
(quoting Arizona, 567 U.S. at 400).
The district court further held that SB4 conflicts with federal law in numerous respects, including that it “provides state
officials the power to enforce federal law without federal supervision,” App., infra, 56a, “divests federal immigration authorities of the discretion of the enforcement of immigration laws,
which touches on delicate considerations of foreign affairs,” id.
at 57a, “prevent[s] noncitizens from asserting affirmative defenses to removal that would have been available in the federal
system,” ibid., and does not adhere to federal law with respect to
removal destinations, id. at 60a-61a.
With respect to the Foreign Commerce Clause, the district
court held that SB4 facially discriminates against foreign commerce by criminalizing the movement only of noncitizens across an
international boundary and also undermines the federal government’s ability to “speak with one voice in regulating commercial
affairs with foreign states.” App., infra, 66a (citation omitted);
see id. at 64a-67a.
The district court next rejected Texas’s invocation of the
State War Clause.
App., infra, 67a-100a.
That Clause provides
that “[n]o State shall, without the Consent of Congress
* * *
14
engage in War, unless actually invaded, or in such imminent Danger
as will not admit of delay.”
U.S. Const. Art. 1, § 10, Cl. 3.
The court held that “Texas’s argument fails for at least three
reasons”:
“unauthorized immigration does not constitute an ‘in-
vasion’”; “Texas is not ‘engaging in war’ by enforcing SB4 4”; and
even “if Texas were engaging in a war, it would have to abide by
federal directives.”
App., infra, 67a-68a (brackets omitted).
Turning to the remaining preliminary injunction factors, the
district court found that the United States would suffer irreparable harm if SB4 goes into effect.
App., infra, 101a-106a.
And
the court further held that the balance of the equities and public
interest weigh in favor of a preliminary injunction, given the
United States’ sovereign interest in regulating immigration and
Texas’s lack of any legitimate interest in enforcing an unconstitutional law. Id. at 109a-110a. After concluding that “the nature
of SB4 does not lend itself to a partial injunction,” the court
enjoined the law in full.
2.
Id. at 111a.
Respondents appealed to the Fifth Circuit and, shortly
before midnight on March 1, 2024, filed a motion for a stay pending
appeal.
That motion included a one-sentence “request[] [for] an
administrative stay to prevent irreparable harm while the Court
considers this Motion.”
C.A. Stay Mot. 19.
Within hours, the
United States filed a short opposition to respondents’ request for
an administrative stay.
C.A. Doc. 37 (Mar. 2, 2024).
The United
States explained that “[a]n administrative stay ‘in this context
15
. . .
is only intended to preserve the status quo until the
substantive motion for a stay pending appeal can be considered on
the merits.’”
Id. at 2 (quoting Doe #1 v. Trump, 944 F.3d 1222,
1223 (9th Cir. 2019)); see ibid. (collecting similar cases from
other circuits).
Because allowing SB4 to go into effect would
dramatically alter the status quo, the United States argued that
an administrative stay was not warranted.
Id. at 3-4.
The United
States also stated that it intended to file its response to the
motion for a stay pending appeal later on March 2, and that the
court of appeals would then be able to resolve that motion with
the benefit of adversarial briefing before SB4 was set to take
effect on March 5.
Id. at 4.
Early in the evening on March 2, without waiting for that
full response, the court of appeals granted respondents’ motion
for a “temporary administrative stay,” expedited the appeal “to
the next available Oral Argument Calendar,” and deferred consideration of respondents’ motion for a stay pending appeal “to the
oral argument merits panel.”
App., infra, 2a.3 In response to a
This practice of granting what is purportedly “administrative” relief while deferring action on the merits of a stay
motion is increasingly common in the Fifth Circuit and often results in the “administrative” stay remaining in place throughout
the appeal, with the merits panel ultimately denying the underlying
stay motion as moot when it issues a merits opinion. See, e.g.,
Petteway v. Galveston Cnty., No. 23-40582 (Oct. 18, 2023) (granting
administrative stay and deferring stay motion to merits panel,
which affirmed but extended the administrative stay pending an en
banc poll through November 20, 2023); United States v. Abbott, No.
23-50632 (Sept. 11, 2023) (granting administrative stay and deferring stay motion to merits panel, which resolved the appeal on
the merits on December 1, 2023); Missouri v. Biden, No. 23-30445
3
16
request by the plaintiffs in the consolidated case, the court
“stay[ed] the temporary administrative stay for seven days following the date hereof pending an application to the Supreme
Court.”
Ibid.
Judge Ramirez noted that she “would not grant a
temporary administrative stay and would defer the question” to the
merits panel.
Ibid.
Accordingly, absent further action by this Court, the court
of appeals’ stay will take effect at 12:01 a.m. on Sunday, March
10, 2024, thereby allowing enforcement of SB4 for the first time.
The Fifth Circuit has not yet indicated when it will assign the
case to a merits panel or hold oral argument.
ARGUMENT
The United States respectfully requests that this Court vacate the Fifth Circuit’s stay of the district court’s preliminary
injunction.
“The well-established principles” that guide the de-
termination whether “to stay a judgment entered below are equally
applicable when considering an application to vacate a stay.”
Certain Named & Unnamed Non-Citizen Children & Their Parents v.
Texas, 448 U.S. 1327, 1330 (1980) (Powell, J., in chambers).
In
considering such an application, this Court has thus looked to the
traditional “four-factor test” for a stay.
Alabama Ass’n of Real-
(July 14, 2023) (granting administrative stay and deferring stay
motion to merits panel, which resolved the case on the merits on
September 8, 2023); Campaign Legal Ctr. v. Scott, No. 22-50692
(Aug. 12, 2022) (granting an administrative stay and deferring
stay motion to merits panel, which resolved the appeal on the
merits on September 29, 2022).
17
tors v. HHS, 141 S. Ct. 2485, 2488 (2021) (per curiam).
asks:
That test
“(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest
lies.”
Nken v. Holder, 556 U.S. 418, 426 (2009) (citation omit-
ted).
Each of those factors strongly supports vacating the stay
in this case.
And vacatur is especially appropriate because the
court of appeals has granted what amounts to a stay pending appeal
without even purporting to consider the relevant factors.
I.
THE GOVERNMENT IS LIKELY TO SUCCEED ON THE MERITS
If the court of appeals overturned the preliminary injunction
in this case, there is a strong likelihood that this Court would
grant a writ of certiorari and reverse.
A decision upholding SB4
would conflict with decisions of other courts of appeals and flout
this Court’s binding precedent on a matter of national importance.
A.
This Court Would Likely Grant Review If The Court Of
Appeals Reversed The Preliminary Injunction
Review in this Court would clearly be in order if the court
of appeals reverses the district court’s injunction.
As the dis-
trict court held, SB4 is plainly preempted under this Court’s
decision in Arizona.
See App., infra, 32a, 38a.
And as the
district court also recognized, see id. at 36a, 49a, 57a, other
courts of appeals have repeatedly upheld injunctions barring en-
18
forcement of other state criminal statutes that purport to replicate federal immigration laws.
See United States v. South Caro-
lina, 720 F.3d 518, 532-533 (4th Cir. 2013); Valle del Sol Inc. v.
Whiting, 732 F.3d 1006, 1026-1028 (9th Cir. 2013), cert. denied,
572 U.S. 1060 (2014); Georgia Latino Alliance for Human Rights v.
Governor of Georgia, 691 F.3d 1250, 1263–1267 (11th Cir. 2012);
United States v. Alabama, 691 F.3d 1269, 1285-1288 (11th Cir.
2012), cert. denied, 569 U.S. 968 (2013).
A decision upholding
SB4 would conflict with those decisions.
In addition, the enormous practical and legal consequences of
a decision upholding SB4 would warrant this Court’s review even
absent a square conflict with this Court’s precedents and the
decisions of other courts of appeals.
See, e.g., Biden v. Texas,
597 U.S. 785 (2022) (reviewing, in the absence of any circuit
conflict, a preliminary injunction that interfered with the Executive’s discretionary judgments about whether to return noncitizens to Mexico).
The district court found that SB4 “would imme-
diately disrupt sensitive foreign relations agreements, particularly around the destination for the removal of noncitizens,” and
could “irreparably derail[]” ongoing discussions with Mexico intended “to reduce irregular migration at the southern border.”
App., infra, 102a-103a.
Moreover, Texas’s attempt (C.A. Stay Mot.
15-17) to defend some applications of SB4 as an exercise of the
power to “engage in War” in response to an “inva[sion],” U.S.
Const. Art. I, § 10, Cl. 3, could have far-reaching ramifications
19
under our constitutional structure. See John Yoo, Why Texas Cannot
Treat Illegal Immigration as an ‘Invasion’, National Review (Nov.
18, 2022), https://perma.cc/SB23-KK6Y (“[I]f the border influx
amounts to war,” Texas “could attack drug-cartel members not only
across the border but all the way back to their hideouts.
The
implications for foreign relations are obvious.”).
B.
Federal Law Preempts SB4
The district court also correctly held that the United States
is likely to prevail on the merits of its claim that SB4 is both
field and conflict preempted.
1.
SB4 impermissibly intrudes into a field reserved
to, and occupied by, the federal government
“[T]he States are precluded from regulating conduct in a field
that Congress, acting within its proper authority, has determined
must be regulated by its exclusive governance.”
States, 567 U.S. 387, 399 (2012).
Arizona v. United
Field preemption “can be in-
ferred from a framework of regulation ‘so pervasive
. . .
that
Congress left no room for the States to supplement it’ or where
there is a ‘federal interest
. . .
so dominant that the federal
system will be assumed to preclude enforcement of state laws on
the same subject.’”
Ibid. (citation omitted).
Congress’s enact-
ment of the INA’s comprehensive and detailed regime governing entry
and removal and its vesting of authority in the Executive to administer and enforce all aspects of that regime demonstrate that
federal law fully occupies this field, and the dominant federal
20
interests in this context strongly reinforce that conclusion.
a.
This Court has repeatedly held that the “authority to
control immigration -- to admit or exclude aliens -- is vested
solely in the Federal Government,” Truax v. Raich, 239 U.S. 33, 42
(1915), and that the formulation of “[p]olicies pertaining to the
entry of aliens and their right to remain here
* * *
is entrusted
exclusively to Congress,” Galvan v. Press, 347 U.S. 522, 531 (1954)
(citations omitted).
The allocation of that authority to the
federal government reflects the fundamental proposition that the
United States’ “policy toward aliens is vitally and intricately
interwoven with
* * *
the conduct of foreign relations.”
risiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952).
Ha-
This Court
has long emphasized that “[i]t is fundamental that foreign countries concerned about the status, safety, and security of their
nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
Arizona, 567 U.S. at 395; see Hines v. Davidowitz,
312 U.S. 52, 66 (1941) (“[T]he regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on
the same subject * * * the law of the State * * * must yield.”).
In recognition of those dominant federal interests and the
National Government’s paramount authority in this area, Congress
enacted the INA, which today comprehensively regulates the entry
and removal of noncitizens.
See Patel v. Garland, 596 U.S. 328,
21
331 (2022) (“Congress has comprehensively detailed the rules by
which noncitizens may enter and live in the United States.
When
noncitizens violate those rules, Congress has provided procedures
for their removal.”).
Congress has determined which noncitizens
may be admitted to the United States and the procedures for their
admission.
8 U.S.C. 1181-1188, 1201-1204.
Congress has provided
“the sole and exclusive procedure for determining whether an alien
may be admitted to the United States or, if the alien has been so
admitted, removed from the United States.”
8 U.S.C. 1229a(a)(3).
Congress has included a detailed process for selecting the countries to which noncitizens may be removed and called upon federal
officials to coordinate with the relevant foreign governments in
executing removal orders.
8 U.S.C. 1231.
Congress has specified
when a noncitizen’s entry into the United States is a crime.
U.S.C. 1325(a) and (b), 1326.
8
And Congress has provided immigra-
tion officers with broad and often unreviewable discretion in exercising the authorities it has vested in them.
Arizona, 567 U.S.
at 396, 409; see Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 483-484, 485 n.9 (1999).
Because Congress, in the INA, has thus fully occupied the
field of noncitizen entry and removal, there is “no room for the
States to supplement it,” even through “complementary state regulation.”
Arizona, 567 U.S. at 399, 401.
Texas’s attempt to
supplement federal law through SB4 is therefore preempted.
As the
district court recognized (App., infra, 32a, 38a), that result is
22
compelled by this Court’s holding in Arizona that the doctrine of
field preemption prohibited the State from enacting a criminal
penalty for failure by a noncitizen to comply with the INA’s registration requirements.
See 567 U.S. at 400-403.
Like Arizona,
Texas has attempted to “add[] a state-law penalty for conduct
proscribed by federal law.”
Id. at 400.
Here, as there, “federal
statutory directives provide a full set of standards,” including
“the punishment for noncompliance.”
Id. at 401.
Here, as there,
the statutory framework “was designed as a ‘harmonious whole.’”
Ibid.
And here, as there, “[p]ermitting the State to impose its
own penalties for the federal offenses
* * *
the careful framework Congress adopted.”
would conflict with
Id. at 402.
Indeed, because the regulation of entry and removal of noncitizens lies at the core of the federal government’s sovereign prerogatives
to
regulate
immigration,
field
clearer in this case than in Arizona.
that “decision[s] on removability
is
even
The Court has recognized
* * *
tions and must be made with one voice.”
preemption
touch on foreign rela-
Arizona, 567 U.S. at 409;
see Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 348
(2005) (“Removal decisions, including the selection of a removed
alien’s destination, ‘may implicate [the Nation’s] relations with
foreign powers’ and require consideration of ‘changing political
and economic circumstances.’”) (citation omitted).
Allowing “a single State” to make determinations regarding
entry and removal would allow that State “at her pleasure” to
23
“embroil us in disastrous quarrels with other nations.”
Chy Lung
v. Freeman, 92 U.S. 275, 280 (1875); accord Arizona, 467 U.S. at
395.
And if multiple States followed Texas’s example and enacted
their own immigration policies and enforcement measures, the resulting patchwork would cause an even greater interference with
the Nation’s ability to speak with one voice in international
affairs.
See Arizona, 567 U.S. at 395.
It is therefore unsur-
prising that even the dissenting Justices in Arizona did not suggest that States could intrude on federal prerogatives in the way
that SB4 does.
See id. at 427 (Scalia, J., concurring in part and
dissenting in part) (noting that Arizona’s law “does not represent
commencement of the removal process unless the Federal Government
makes it so”); id. at 457 (Alito J., concurring in part and dissenting in part) (emphasizing that under Arizona law “[t]he Executive retains complete discretion over whether [the noncitizens]
are ultimately removed”).
b.
Texas’s contrary arguments are unavailing.
Texas has
attempted (C.A. Stay Mot. 12) to limit Arizona to noncitizen registration.
But while that was the particular field at issue in
Arizona, Texas has provided no reasoned basis for confining the
Court’s analysis to the particular provisions of the INA at issue
there.
And Texas has not shown how SB4’s direct regulation of the
core subjects of entry and removal could withstand field preemption
analysis when the state registration law in Arizona could not.
Texas has also asserted (C.A. Stay Mot. 11-12) that Congress
24
did not preempt the field of entry and removal because federal law
provides certain immigration-related roles for States.
See, e.g.,
18 U.S.C. 758 (creating federal crime of fleeing from federal
immigration checkpoint and from “Federal, State, or local law enforcement agents in excess of the legal speed limit”); 8 U.S.C.
1101(a)(15)(T)(i)(III)(aa) (referencing state “prosecution of acts
of trafficking”).
But none of Texas’s cited laws permits States
to regulate the entry and removal of noncitizens. And Texas simply
ignores Section 1357(g), which expressly allows States to “cooperate with the [Secretary] in the identification, apprehension,
detention, or removal of aliens,” 8 U.S.C. 1357(g)(10)(B) (emphasis added), and thus makes clear that the role of state and local
officials in this area is to assist the Secretary in enforcement
of federal law.
As the district court recognized (App., infra,
63a), that limited provision for States to work hand-in-hand with
the federal government would mean nothing if any State could
“claim[] unlimited concurrent immigration authority.”
Texas also cannot avoid the preemptive force of federal law
by contending that orders under SB4 are not “removals.”
As the
district court explained, Texas’s own declarant stated that SB4
envisions that state officials would “escort[] a noncitizen to the
border” where the noncitizen would “either depart into Mexico or
* * *
face 20 years in prison if they do not.”
App., infra, 45a.
Given that choice, “it is rather absurd to argue” that Texas is
not effectively removing the noncitizens. Ibid. And, as the court
25
recognized (id. at 46a), the fact that the removal is not “in
handcuffs” but only “under threat of handcuffs (and 20 years of
prison)” does not abate the significant foreign affairs concerns
created by a State’s forced return of noncitizens to Mexico outside
of the process Congress specified for the federal government to
identify the countries to which noncitizens may be removed and to
coordinate with foreign governments to determine if they will accept those noncitizens.
2.
See 8 U.S.C. 1231(b).
SB4 conflicts with federal immigration law
SB4 is also preempted because it “stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.”
a.
Arizona, 567 U.S. at 399 (citation omitted).
It would fundamentally disrupt the federal immigration
regime to allow a single State to make unilateral determinations
regarding unlawful entry and removal.
The enforcement of federal
immigration law necessarily imposes consequences for foreign nationals based on acts committed in violation of federal law and
can involve a sensitive weighing of interests in national security,
border security, foreign affairs, and reciprocal treatment of U.S.
citizens abroad.
See Arizona, 567 U.S. at 395.
Decisions regard-
ing entry and removal thus must take account of the federal government’s foreign relations interests.
Allowing a single State to imprison foreign nationals for
immigration violations or order them removed from the United States
to a non-consenting foreign country without regard to the interests
26
of the Nation as a whole is patently inconsistent with the framework Congress enacted.
Just as there was an impermissible “con-
flict” when a State premised tort liability on fraud committed
against a federal agency due to the “somewhat delicate balance”
that would be “skewed by allowing” such state-law claims, see
Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 348
(2001), so too would SB4 upset the balance Congress struck in
providing for federal enforcement of the immigration laws.
See
Arizona, 567 U.S. at 406 (holding that even though Arizona’s law
“attempts to achieve one of the same goals as federal law,” it
“would interfere with the careful balance struck by Congress”).
In recognition of the necessity of ensuring the Nation speaks
“with one voice” in matters with such significant implications for
foreign affairs, Congress provided for only “limited circumstances
in which state officers may perform the functions of an immigration
officer.”
Arizona, 567 U.S. at 408, 409.
In each of those cir-
cumstances, the state officers are subject to the oversight of
federal officials, who take the lead in fashioning enforcement
priorities and techniques that the state officers must respect.
For example, States may enter into an agreement with DHS to allow
qualified state officers to carry out functions of an immigration
officer “subject to the direction and supervision of the [Secretary],” and only after they have “received adequate training.”
U.S.C. 1357(g)(2)-(3); see Arizona, 567 U.S. at 408-409.
8
Outside
of such formal agreements, state officers may “cooperate with the
27
[Secretary] in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”
U.S.C. 1357(g)(10)(B).
8
Such cooperation, for example, could in-
clude participation in a “joint task force with federal officers.”
Arizona, 567 U.S. at 410.
But “no coherent understanding of the
term [‘cooperate’] would incorporate the unilateral decision of
state officers to arrest an alien for being removable absent any
request, approval, or other instruction from the Federal Government.”
Ibid.
SB4 thus conflicts with federal law by “go[ing] far
beyond” the measures contemplated by Congress, “defeating any need
for real cooperation,” and “allow[ing] the State to achieve its
own immigration policy.”
Id. at 408, 410.
The specifics of SB4’s entry and removal provisions further
illustrate its incompatibility with the scheme Congress enacted.
SB4 denies both the federal government and individual noncitizens
access to the INA’s procedures for determining removability, 8
U.S.C. 1225(b) and 1227, and prevents noncitizens from asserting
defenses to removal that would be available in the federal system,
including asylum, see 8 U.S.C. 1158(a)(1), withholding, see 8
U.S.C. 1231(b)(3), and protections under the Convention Against
Torture, see 8 C.F.R. 1208.16(c)(2). Indeed, SB4 expressly rejects
any deference to federal removal proceedings that could result in
a grant of asylum or other relief or protection from removal by
prohibiting a state court from “abat[ing] the prosecution” on “the
basis that a federal determination regarding the immigration sta-
28
tus of the defendant is pending or will be initiated.”
Crim. P. art. 5B.003.
Tex. Code
In so doing, “SB4 plainly conflicts with
federal law by instructing state judges to disregard pending federal defenses.”
App., infra, 58a.
Similarly, SB4 fails to rep-
licate the exemption from the federal prohibition on reentry for
noncitizens who enter with the Secretary’s consent.
See 8 U.S.C.
1326. SB4 thus criminalizes conduct federal law deems permissible.
SB4 also conflicts with federal law because it permits state
judges to order a noncitizen to return to Mexico without following
the federally prescribed process for selecting the country of removal and coordinating with that country.
Under federal law, a
noncitizen who does not enter through a port of entry first must
designate a country of removal, which can be disregarded only in
certain circumstances.
8 U.S.C. 1231(b)(2)(A) and (C).
If the
noncitizen cannot be removed to that country, there is a hierarchy
of removal countries, starting with the noncitizen’s country of
citizenship.
8 U.S.C. 1231(b)(2)(D) and (E).
And the INA places
specific limits on removal to a “foreign territory contiguous to
the United States.”
8 U.S.C. 1231(b)(2)(B).
Accordingly, removal
to Mexico is not permissible in every case under federal law.
Under SB4, however, removal is always “to the foreign nation
from which the person entered” Texas, Tex. Code Crim. P. art.
5B.002(c) and (d) -- that is, Mexico.
That requirement conflicts
with federal law and would “hamper diplomatic discussions regarding immigration with Mexico.”
App., infra, 60a.
Indeed, this
29
Court already recognized that mandating the return of non-Mexican
nationals to Mexico “impose[s] a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.”
Biden, 597 U.S. at 806.
Allowing Texas (or other States) to
require that result would impose still greater burdens.
b.
Texas has failed to confront the multiple ways in which
SB4 conflicts with the federal immigration laws. Texas has instead
asserted (C.A. Stay Mot. 14) that a noncitizen can comply with
both SB4 and federal law. But that ignores this Court’s longstanding test for conflict preemption, which is not limited to impossibility.
See, e.g., Hines, 312 U.S. at 67.
Texas has argued (C.A. Stay Mot. 12-13) that even if SB4 is
broader than federal law in some respects, it is valid under this
Court’s reasoning in Kansas v. Garcia, 140 S. Ct. 791, 806 (2020).
But Kansas dealt with state criminal statutes prohibiting “fraud,
forgeries, and identity theft” that applied to “citizens and aliens
alike.”
Id. at 798.
In that context, this Court held that the
State could apply those laws to noncitizens’ use of the identity
of other persons on employment forms, even where such an application overlapped with federal law prohibiting the provision of false
information on the particular form at issue.
Id. at 806-807.
In
so holding, Kansas did not overrule Arizona or authorize States to
enact their own criminal laws governing entry and removal. Rather,
Kansas dealt with a generally applicable law that did not “frustrate[] any federal interests.”
Id. at 806.
Here, by contrast,
30
SB4 specifically targets noncitizens and regulates their entry and
removal in a way that frustrates the INA’s comprehensive scheme
and implicates sensitive issues of foreign relations.
C.
SB4 Violates The Foreign Commerce Clause
SB4 also violates the Foreign Commerce Clause.
That Clause
recognizes that “[f]oreign commerce is preeminently a matter of
national concern.”
Japan Line, Ltd. v. Los Angeles Cnty., 441
U.S. 434, 448 (1979).
And the power to regulate commerce has long
been understood to encompass the power to regulate the movement in
commerce of both persons and commodities. See, e.g., United States
v. Guest, 383 U.S. 745, 758-759 (1966). This Court has thus struck
down state statutes regulating shipmasters bringing foreign passengers to the States under a dormant Foreign Commerce Clause
analysis that reiterated that the “whole subject has been confided
to Congress by the Constitution.”
Henderson v. Mayor of New York,
92 U.S. 259, 274 (1875); see Chy Lung, 92 U.S. at 280.
In assessing state laws implicating foreign commerce rather
than interstate commerce, “a more extensive constitutional inquiry
is required.”
Japan Line, 441 U.S. at 446.
That inquiry is
necessary because if a state law disadvantages foreign nations,
such nations may retaliate “so that the Nation as a whole would
suffer.”
Id. at 450.
Thus, in addition to considering whether
the law discriminates against or unduly burdens foreign commerce,
courts must assess whether the state laws would “prevent[] the
Federal Government from ‘speaking with one voice when regulating
31
commercial relations with foreign governments.’”
Id. at 451.
If
so, the law “is unconstitutional under the Commerce Clause.” Ibid.
SB4 plainly fails that test.
It targets only noncitizens,
criminalizes their movements and orders their removal across an
international border, disrupts the uniformity of the immigration
laws, and prevents the federal government from conveying a unified
message in an area of sensitive foreign affairs.
25-29, supra.
D.
See, pp. 21-23,
SB4 therefore violates the Foreign Commerce Clause.
The State War Clause Does Not Save SB4 From Preemption
Notwithstanding the preemptive effect of federal immigration
law and SB4’s incompatibility with the Foreign Commerce Clause,
Texas has argued that a preliminary injunction is unwarranted “because at least some applications of SB4 are constitutional” under
the State War Clause.
C.A. Stay Mot. 15.
correctly rejected that argument.
1.
The district court
See App., infra, 67a-100a.
With narrow exceptions, the Constitution provides for a
“complete delegation of authority to the Federal Government to
provide for the common defense,” while “divest[ing] the States of
like power.”
Torres v. Texas Dep’t of Pub. Safety, 597 U.S. 580,
590 (2022).
That structure reflects the Founders’ concern that
“‘bordering States
. . .
under the impulse of sudden irritation,
and a quick sense of apparent interest or injury[,]’ might take
action that would undermine foreign relations.”
Arizona, 567 U.S.
at 395 (quoting The Federalist No. 3, at 39 (John Jay) (Clinton
Rossiter ed., 2003)).
To prevent such an occurrence, the State
32
War Clause generally prohibits any State to “engage in War,” U.S.
Const. Art. I, § 10, Cl. 3, leaving decisions about whether and
how war should be waged to the federal government alone.
At a time when communications or troops could take weeks to
travel from one part of the country to another, however, the
Founders recognized the need to account for fast-arising developments to which the federal government had not yet had time to
respond.
Accordingly, the State War Clause carves out from its
general prohibition a narrow exception applicable when a State is
“actually invaded, or in such imminent Danger as will not admit of
delay,” U.S. Const. Art. I, § 10, Cl. 3.
2.
For at least three reasons, the State War Clause and its
“actually invaded” exception do not save SB4 from invalidity.
a.
The exception to the State War Clause applies only where
a State has been “actually invaded” or faces the “imminent” threat
of such “Danger.”
U.S. Const. Art. I, § 10, Cl. 3.
Because Texas
has not been (and is not in imminent danger of being) “actually
invaded,” it cannot invoke that exception.
The original public meaning of the phrase “actually invaded”
indicates that the exception was intended to apply narrowly and is
not triggered by “surges in unauthorized immigration” of the sort
targeted by SB4.
App., infra, 69a.
As the district court thor-
oughly demonstrated, “[c]ontemporary definitions of ‘invasion’ and
‘actually invaded’ as well as common usage of the term in the late
Eighteenth Century predominantly referred to an ‘invasion’ as a
33
hostile and organized military force, too powerful to be dealt
with by ordinary judicial proceedings.”
Id. at 70a; see id. at
71a-75a (surveying contemporaneous dictionaries and usage).
Even if a more expansive understanding of “actually invaded”
were linguistically possible, context confirms that the Founders
used the phrase in a constrained manner.
The State War Clause
reflects an intent generally to prohibit States from “engag[ing]
in War.”
U.S. Const. Art. I, § 10, Cl. 3.
In recognizing an
exception from that prohibition, it was natural for the Founders
to refer to circumstances in which a State’s temporary engaging in
war would be necessary because of the inadequacy of the States’
police powers.
In contrast, there would have been no need to
authorize States to engage in war -- particularly given the risks
that would pose to foreign policy, see The Federalist No. 3, at 39
-- to address circumstances that could be addressed through other
means.
Courts have thus consistently recognized that “invasion”
does not include unlawful immigration.4
b.
Even if Texas could establish that it has been “actually
invaded,” the effect would be to exempt it temporarily from the
See California v. United States, 104 F.3d 1086, 10901091 (9th Cir.) (observing that James Madison described “invasion”
as involving “situations wherein a state is exposed to armed hostility”), cert. denied, 522 U.S. 806 (1997); New Jersey v. United
States, 91 F.3d 463, 468 (3d Cir. 1996) (noting that State identified “no support whatsoever” interpreting “the term ‘invasion’
to mean anything other than a military invasion”); Padavan v.
United States, 82 F.3d 23, 28 (2d Cir. 1996) (holding that “invasion” entails “expos[ure] to armed hostility
* * *
that is
intending to overthrow the state’s government”).
4
34
State War Clause’s general prohibition on “engag[ing] in War.”
U.S. Const. Art. I, § 10, Cl. 3.
It is not that prohibition,
however, that renders SB4 invalid.
Enforcement of SB4 is uncon-
stitutional because it is preempted under the Supremacy Clause and
inconsistent with the Foreign Commerce Clause, not because it
qualifies as prohibited war-making.
Congress in the INA addressed
the circumstances that Texas would characterize as an invasion,
and the State is not free to disregard those provisions.
Texas appears to accept that SB4 is not genuinely “a ‘wartime
measure’” of the sort that would require an exception from the
State War Clause.
C.A. Stay Mot. 17 (quoting App., infra, 88a).
It has argued, however, that “‘the greater power’ to wage war”
necessarily “‘includes the lesser’ power to” enforce SB4.
(quoting Moyer v. Peabody, 212 U.S. 78, 84-85 (1909)).
Ibid.
But as the
district court observed, “Texas is not engaging in war -- through
SB 4 or otherwise -- so it cannot claim that SB 4 is a necessary
domestic component of the war effort.”
c.
App., infra, 89a.
Texas’s reliance on the exception to the State War Clause
also suffers from a third, related flaw.
As indicated by the
reference to “such imminent Danger as will not admit of delay,”
U.S. Const. Art. I, § 10, Cl. 3, “the State War Clause grants
states the power to engage in war for a very limited time before
the federal government can respond,” App., infra, 76a.
But “once
the federal government has had time to respond to the purported
invasion,” id. at 94a, States are not free to contradict the fed-
35
eral government’s considered decision about how (and whether) to
“engage in War” in response to particular circumstances.
Here, Congress has enacted a statute that comprehensively
addresses immigration, including illegal immigration.
And in this
suit, the United States is invoking that statute and seeking to
enjoin Texas’s enforcement of SB4, in part because the State’s
enforcement of SB4 would seriously harm the Nation’s foreign relations.
Under those circumstances, the State War Clause provides
no basis for allowing Texas to enforce SB4 over the United States’
explicit opposition.
See Torres, 597 U.S. at 592 (“The States
ultimately ratified the Constitution knowing that their sovereignty would give way to national military policy.”).
E.
The United States May Sue In Equity To Enjoin Preempted
State Laws
The
district
court
correctly
recognized
that
the
United
States may sue in equity to enjoin the operation of preempted state
laws -- especially where, as here, the state laws interfere with
the United States’ administration and enforcement of federal immigration or other laws.
suit in Arizona.
The United States brought just such a
See 567 U.S. at 393; App., infra, 26a-29a.
And
it has brought many similar suits against other States. See, e.g.,
United States v. California, 921 F.3d 865, 875-877 (9th Cir. 2019)
(considering preemption and intergovernmental-immunity challenges
to three California laws); South Carolina, 720 F.3d at 532-533
(affirming injunction barring application of preempted state laws
36
affecting immigration in suit brought by the United States); Alabama, 691 F.3d at 1285-1288 (same).
Those suits reflect a particularly well-settled application
of the principle that the United States may, in appropriate cases,
bring a suit in equity to vindicate the interests of the National
Government under the Constitution.
The canonical precedent rec-
ognizing that authority is In re Debs, 158 U.S. 564 (1895). There,
the United States obtained an injunction against the Pullman rail
strike, which had “forcibly obstructed” interstate commerce.
at 577.
Id.
In recognizing the United States’ authority to seek that
relief, this Court reasoned that “[e]very government, entrusted,
by the very terms of its being, with powers and duties to be
exercised and discharged for the general welfare, has a right to
apply to its own courts for any proper assistance in the exercise
of the one and the discharge of the other.”
Id. at 584.
Contrary to Texas’s argument (C.A. Stay Mot. 9), the rule
applied in Debs is not limited to suits brought “to abate a public
nuisance.”
Rather, Debs endorsed and embodied the “general rule
that the United States may sue to protect its interests.”
Wyan-
dotte Transp. Co. v. United States, 389 U.S. 191, 201 (1967).
Applying that same general rule, subsequent decisions have recognized that when the United States sues in equity to protect other
sovereign interests, such as the United States’ obligation “to
carry out treaty obligations,” “no statute is necessary to authorize the suit.”
Sanitary Dist. v. United States, 266 U.S. 405,
37
425-426 (1925); see, e.g., United States v. American Bell Tel.
Co., 128 U.S. 315, 367-368 (1888) (suit to protect the public from
fraudulent patents); Heckman v. United States, 224 U.S. 413, 438439 (1912) (suit to protect Indian tribes).
Texas identifies no
sound basis for holding that the United States’ sovereign interests
at issue here are any less deserving of protection in equity.5
In addition, the United States may proceed against the officer
defendants under the doctrine of Ex parte Young, 209 U.S. 123, 167
(1908).
A suit against state officials is proper under that doc-
trine where, as here, the plaintiff alleges an imminent or “ongoing
violation of federal law and seeks relief properly characterized
as prospective.”
Virginia Office for Prot. & Advocacy v. Stewart,
563 U.S. 247, 255 (2011) (citation omitted); see Ex parte Young,
209 U.S. at 156 (holding state officers who “threaten” to engage
in “an unconstitutional act
* * *
may be enjoined by a Federal
court of equity from such action”).
Texas has argued that suits
under Ex parte Young “may not be brought by governments” because
the doctrine is purportedly “limited to ‘private parties.’”
Stay Mot. 9 (citation omitted).
C.A.
But this Court has squarely re-
jected that view, holding that “there is no warrant in our cases
for making the validity of an Ex parte Young action turn on the
identity of the plaintiff” and thus allowing such a suit brought
by a government agency to proceed.
Stewart, 563 U.S. at 256.
Indeed, SB4 likely would interfere with the United
States’ compliance with treaty obligations under the Convention
Against Torture. See p. 27, supra; App., infra, 58a-59a.
5
38
II.
THE EQUITIES OVERWHELMINGLY FAVOR VACATUR OF THE STAY
The balance of harms and public interest overwhelmingly sup-
port vacatur of the court of appeals’ stay.
junction
entered
by
the
district
court
The preliminary in-
simply
maintains
the
longstanding status quo while this litigation proceeds; the court
of appeals’ stay, on the other hand, would result in direct and
irreparable harms to core federal interests.
1.
Enforcement
of
SB4
would
States’ conduct of foreign affairs.
interfere
with
the
United
It would also result in sub-
stantial injuries to the federal government’s interests in avoiding state intrusion into the administration of a statutory scheme
committed to the federal government’s exclusive authority.
To start, SB4 would significantly harm the United States’
relationship with Mexico, the “United States’ largest trading
partner.” App., infra, 103a.
As the district court found, “[t]he
United States engages in regular talks with Mexico to reduce irregular migration at the southern border,” but those “discussions
may become irreparably derailed if SB 4 takes effect.”
Id. at
102a-103a; see D. Ct. Doc. 14-1, at ¶¶ 11-16 (Jan. 12, 2024)
(Jacobstein Decl.) (declaration of senior State Department official regarding anticipated effects of SB4 on the United States’
relationship with Mexico).
Indeed, this Court has recognized that
mandating the return of non-Mexican nationals to Mexico “impose[s]
a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.”
Biden, 597 U.S. at 806.
39
Enforcement of SB4 is likely to damage other international
relationships as well.
“It is fundamental that foreign countries
concerned about the status, safety, and security of their nationals
in the United States must be able to confer and communicate on
this subject with one national sovereign, not the 50 separate
States.”
Arizona, 567 U.S. at 395.
By overriding federal control
of “immigration policy,” SB4 would undermine the efficacy of those
communications and create a risk that other nations may respond to
perceived mistreatment in Texas with “harmful reciprocal treatment
of American citizens abroad.”
Ibid.
And because SB4 has no
provision to prevent refoulement (the return of a person to a
country in which she would face persecution or torture), implementation of the law could likely also cause the United States to
violate its treaty obligations. See p. 27, supra; Jacobstein Decl.
¶ 25; App., infra, 106a.
SB4 would also displace federal officers’ exercise of discretion in enforcing the immigration laws, including their choice
between criminal prosecution and removal.
And because SB4 pro-
hibits abatement of a state prosecution while the federal government conducts asylum or adjustment-of-status proceedings, see Tex.
Code Crim. P. art. 5B.003, a noncitizen facing SB4 enforcement
proceedings “would be unable to participate fully in federal immigration proceedings,” “attend scheduled interviews,” or “comply
with required identity and security check procedures.”
Doc. 14-3, at 7 (Jan. 12, 2024).
D. Ct.
Arrests under SB4 would also,
40
ironically, cause DHS to “lose the ability to pursue expedited
removals, which must be used to remove noncitizens within 14 days
of their arrival.”
App., infra, 105a; see id. at 106a-107a (iden-
tifying additional forms of harm to the United States).
2.
In contrast to the profound harms that enforcement of
SB4 would cause to the United States, Texas would face no cognizable harm from a preliminary injunction that merely maintains the
longstanding status quo while this litigation proceeds.
In its
motion for a stay pending appeal, Texas made a cursory invocation
of “the public’s interest in seeing that laws are enforced.”
Stay Mot. 18.
C.A.
As the district court explained, the preliminary
injunction would leave Texas free to address “‘drug smuggling,
human trafficking, and terrorism’” using the same “expansive police powers
* * *
to regulate crime within its borders” that it
has relied on “[f]or the past century.”
tion omitted).
App., infra, 110a (cita-
All the preliminary injunction does is prevent
Texas from interfering in “the federal field of unlawful entry and
removal,” ibid., as required by the Constitution and the INA.
Texas has no valid interest in achieving that disruptive result.
41
CONCLUSION
This Court should vacate the stay entered by the United States
Court of Appeals for the Fifth Circuit.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
MARCH 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.