Emergency Application — Las Americas Immigrant Advocacy Center, et al., Applicants v. Steven McCraw, Director, Texas Department of Public Safety, et al.

No. 23A815

In the

Supreme Court of the United States

_______________________________

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; AMERICAN GATEWAYS; AND EL

PASO COUNTY, TEXAS,

Applicants,

v.

STEVEN MCCRAW, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF TEXAS DEPARTMENT OF PUBLIC

SAFETY; AND BILL HICKS, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE 34TH

DISTRICT,

_______________________________

Respondents.

REPLY IN SUPPORT OF APPLICATION TO VACATE STAY OF PRELIMINARY

INJUNCTION ENTERED BY THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

_______________________________

David A. Donatti

Adriana C. Piñon

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF TEXAS, INC.

P.O. Box 8306

Houston, TX 77288

T: (713) 942-8146

Tamara F. Goodlette*

Daniel Hatoum*

Erin D. Thorn*

TEXAS CIVIL RIGHTS PROJECT

1017 W. Hackberry Ave.

Alamo, TX 78516

T: (512) 474-5073, ext. 207

Cody Wofsy

Counsel of Record

Spencer Amdur

Cecillia D. Wang

Hannah Schoen

Morgan Russell

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

425 California Street, Suite 700

San Francisco, CA 94104

T: (415) 343-0770

cwofsy@aclu.org

ADDITIONAL COUNSEL AND REPRESENTATION INFORMATION ON NEXT PAGE

Jo Anne Bernal**

El Paso County Attorney

320 S. Campbell St., Suite 200

El Paso, Texas 79901

T: (915) 273-3247

Bernardo Rafael Cruz**

Assistant County Attorney

320 S. Campbell St., Suite 200

El Paso, Texas 79901

T: (915) 273-3247

* Attorneys for Applicants Las Americas

Immigrant Advocacy Center and American

Gateways

** Attorneys for Applicant County of El Paso

Anand Balakrishnan

Omar Jadwat

Lee Gelernt

Wafa Junaid

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

212-549-2660

David D. Cole

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Attorneys for Applicants

Las Americas Immigrant Advocacy Center,

American Gateways, and County of El Paso

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 2

I. TEXAS HAS NO LIKELIHOOD OF SUCCESS IN DEFENDING S.B. 4 ...................... 2

A. S.B. 4 is Preempted and None of Texas’s Contrary Arguments Is Likely

to Succeed.............................................................................................................. 3

B. Texas’s Threshold Arguments Could Not Justify a Stay and in Any Event

Lack Merit ........................................................................................................... 13

II. THE EQUITIES SUPPORT VACATUR ......................................................................... 15

CONCLUSION ............................................................................................................................. 19

i

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013) .................................................................................................................... 15

Arizona v. Mayorkas,

143 S. Ct. 478 (2022) ................................................................................................................ 3

Arizona v. United States,

567 U.S. 387 (2012) .............................................................................. 2, 3, 5, 6, 7, 8, 9, 11, 12

Armstrong v. Exceptional Child Center, Inc.,

575 U.S. 320 (2015) ................................................................................................................ 15

Arrowsmith v. Voorhies,

5 F.2d 310 (E.D. Mich. 1931) ............................................................................................... 1, 2

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ............................................................................................................ 14

Biden v. Texas,

142 S. Ct. 1098 (2022) .............................................................................................................. 3

Bowsher v. Synar,

478 U.S. 714 (1986) ................................................................................................................ 13

Builder Recovery Servs., LLC v. Town of Westlake,

650 S.W.3d 499 (Tex. 2022)................................................................................................... 10

Carroll v. Safford,

3 How. 441 (1845) .................................................................................................................. 15

Chae Chan Ping v. United States,

130 U.S. 581 (1889) .................................................................................................................. 1

Chy Lung v. Freeman,

92 U.S. 275 (1875) .......................................................................................................... 2, 5, 11

City of Austin v. Reagan National Advertising of Austin, LLC,

596 U.S. 61 (2022) .................................................................................................................. 10

City of Los Angeles v. Patel,

576 U.S. 409 (2015) .................................................................................................................. 9

ii

Department of Homeland Security v. Regents of the University of California,

139 S. Ct. 2779 (2019) .............................................................................................................. 3

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ............................................................................................................ 10

Ex parte Quirin,

317 U.S. 1 (1942) .................................................................................................................... 12

Ex parte Young,

209 U.S. 123 (1908) ................................................................................................................ 14

Galvan v. Press,

347 U.S. 522 (1954) ................................................................................................................ 11

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) ................................................................................................................ 13

Hines v. Davidowitz,

312 U.S. 52 (1941) .................................................................................................................... 2

Kansas v. Garcia,

140 S. Ct. 791 (2020) ................................................................................................................ 8

Lassen v. Arizona,

385 U.S. 458 (1967) ................................................................................................................ 14

League of Women Voters of Indiana, Inc. v. Sullivan,

5 F.4th 714 (7th Cir. 2021) ....................................................................................................... 9

Murphy v. NCAA,

584 U.S. 453 (2018) .................................................................................................................. 9

NAACP v. City of Kyle, Tex.,

626 F.3d 233 (5th Cir. 2010) .................................................................................................. 13

National Press Photographers Association v. McCraw,

90 F.4th 770 (5th Cir. 2024) ..................................................................................................... 7

Nishimura Ekiu v. United States,

142 U.S. 651 (1892) ................................................................................................................ 11

Nken v. Holder,

556 U.S. 418 (2009) ................................................................................................................ 17

Pacific Gas & Electric Co. v. State Energy Resources Conservation &

Development Commission,

461 U.S. 190 (1983) .................................................................................................................. 8

iii

Plyler v. Doe,

457 U.S. 202 (1982) ................................................................................................................ 11

Reno v. ACLU,

521 U.S. 844 (1997) ................................................................................................................ 10

Rose v. Doctors Hospital,

801 S.W.2d 841 (Tex. 1990)................................................................................................... 10

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ............................................................................................................ 11

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) .................................................................................................................. 15

Shelby County v. Holder,

570 U.S. 529 (2013) ................................................................................................................ 14

Sierra Club v. Morton,

405 U.S. 727 (1972) ................................................................................................................ 14

Sterling v. Constantin,

287 U.S. 378 (1932) ................................................................................................................ 12

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................................................................................ 14

Truax v. Raich,

239 U.S. 33 (1915) .................................................................................................................... 5

Tweed-New Haven Airport Authority v. Tong,

930 F.3d 65 (2d Cir. 2019)...................................................................................................... 14

United States v. Booker,

543 U.S. 220 (2005) ................................................................................................................ 11

United States v. Clemente E.,

392 F.3d 1164 (10th Cir. 2004) ................................................................................................ 7

United States v. L.,

990 F.3d 1058 (7th Cir. 2021) .................................................................................................. 7

United States v. Martinez-Fuerte,

428 U.S. 543 (1976) .................................................................................................................. 7

United States v. Salerno,

481 U.S. 739 (1987) .................................................................................................................. 9

iv

United States v. Texas,

143 S. Ct. 51 (2022) .................................................................................................................. 3

Virginia Office for Protection & Advocacy v. Stewart,

563 U.S. 247 (2011) ................................................................................................................ 15

West Virginia v. Environmental Protection Agency,

597 U.S. 697 (2022) ................................................................................................................ 14

Whitman v. American Trucking Associations,

531 U.S. 457 (2001) .................................................................................................................. 8

Whole Woman’s Health v. Hellerstedt,

579 U.S. 582 (2016) ................................................................................................................ 10

Wolf v. Innovation Law Lab,

141 S. Ct. 617 (2020) ................................................................................................................ 3

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ................................................................................................................ 12

STATUTES & REGULATIONS

18 U.S.C. § 758 ............................................................................................................................... 7

22 U.S.C. § 7105 ............................................................................................................................. 7

8 C.F.R. § 214.11 .......................................................................................................................... 17

8 C.F.R. § 214.14 .......................................................................................................................... 17

8 U.S.C. § 1101 ............................................................................................................................. 17

8 U.S.C. § 1229a ............................................................................................................................. 8

8 U.S.C. § 1357 ............................................................................................................................... 8

Tex. Code of Crim. Proc. art. 5B.002 ............................................................................................. 4

Tex. Code of Crim. Proc. art. 5B.003 ........................................................................................... 17

Tex. Health & Safety Code § 481.112-141................................................................................... 16

Tex. Penal Code § 12.33 ................................................................................................................. 4

Tex. Penal Code § 20A.02 ............................................................................................................ 16

Tex. Penal Code § 51.04 ................................................................................................................. 4

v

Tex. Penal Code § 76.02 ............................................................................................................... 16

OTHER AUTHORITIES

David Bier,

Fentanyl Is Smuggled for U.S. Citizens by U.S. Citizens, Not Asylum Seekers,

Cato Inst. (Sept. 14, 2022) ...................................................................................................... 16

Libby Garland,

AFTER THEY CLOSED THE GATES: JEWISH ILLEGAL IMMIGRATION TO THE UNITED

STATES, 1921-1965 (University of Chicago Press 2014) ......................................................... 1

Shelly Hagan,

Texas Governor’s Border Slowdown Cost $4 Billion, Research Shows

(Bloomberg Ap. 20, 2022), https://perma.cc/223L-V7LJ....................................................... 18

Statement of Brian Sulc,

Executive Director, Transnational Organized Crime Mission Center, Office of

Intelligence and Analysis, Department of Homeland Security (May 18, 2022),

https://perma.cc/76WQ-4YTU................................................................................................ 16

Brief for Appellant,

Hines v. Davidowitz, 312 U.S. 52 (1941) ........................................................................... 1, 12

Brief for Petitioners,

Arizona v. United States, 567 U.S. 387 (2012) ................................................................... 1, 12

U.S. Sentencing Commission,

Quick Facts: Fentanyl Trafficking Offenses (2022), https://perma.cc/XDY9-S49M............. 16

vi

INTRODUCTION

Texas asks this Court to permit it to implement its own immigration system. In support of

that startling request, the State emphasizes its concerns regarding immigration enforcement, citing

the number of recent migrants, along with vague and tenuous attempts to tie asylum seekers to

danger, crime, and drugs.

None of this is new. When large numbers of people from Asia traveled to California

following the 1848 gold rush, that State warned that “their immigration was in numbers

approaching the character of an Oriental invasion, and was a menace to our civilization.” Chae

Chan Ping v. United States, 130 U.S. 581, 595 (1889). When millions of immigrants from eastern

and southern Europe arrived in subsequent decades, states highlighted fears of crime and grave

danger lurking in those populations. See Br. for Appellant 15, Hines v. Davidowitz, 312 U.S. 52

(1941) (Pennsylvania warning during World War II that an immigrant “might possibly be a

blackhander [i.e. a gangster], a spy or a member of a Fifth Column”). 1 In later generations, the

focus shifted to immigration from Mexico and elsewhere in Latin America: In 2012, the State of

Arizona sought to tie a “flood of unlawful cross-border traffic” to an “influx of drugs, dangerous

criminals,” and “members of Mexican drug cartels.” Br. for Petitioners 3, Arizona v. United States,

567 U.S. 387 (2012).

People can disagree about immigration. They always have. And Texas may be deeply

concerned about recent immigration.

But the same was true of California in the 1870s,

1

See also Libby Garland, AFTER THEY CLOSED THE GATES: JEWISH ILLEGAL IMMIGRATION

TO THE UNITED STATES, 1921-1965, 156 (University of Chicago Press 2014) (explaining that

proponents of laws like the statute struck down in Arrowsmith v. Voorhies, 55 F.2d 310 (E.D.

Mich. 1931), feared “a new class of illegal immigrants who were disappearing into the enormous

population of the foreign born” and that “Michigan’s law represented a state government taking

the matter into its own hands” to address what it perceived to be “the federal government’s

enforcement failures”).

1

Pennsylvania and Michigan in the 1930s, and Arizona in 2012. Nevertheless, for 150 years this

Court has made clear that states are not allowed to regulate the core immigration field of entry and

removal. See, e.g., Chy Lung v. Freeman, 92 U.S. 275, 280 (1875); Arizona, 567 U.S. at 408-09;

Hines, 312 U.S. at 62 & n.10; see also Arrowsmith, 55 F.2d at 312 (approvingly cited in Hines,

312 U.S. at 61 n.8). Entry and removal laws are a federal question to be decided by Congress—

which has engaged in robust debate on immigration this year—not in the 50 statehouses.

That basic and well-established principle resolves this case. Texas tries to sidestep it by

badly misreading its own statute and ignoring well over a century of this Court’s precedents. It

then asserts—in the teeth of constitutional structure, history, and common sense—that it has

unreviewable and uncontrollable power to supersede federal law whenever it declares that it is

being invaded. In short, the State offers no plausible reason to permit it to implement this blatantly

preempted law. Certainly the expedited schedule in the court of appeals does not provide one;

Texas concedes a decision is weeks (if not months) away, and in the meantime S.B. 4 is poised to

generate hundreds and possibly thousands of unlawful state deportations.

The stay entered by the court of appeals, if allowed to go into effect, will upend a

remarkably longstanding status quo. It should be vacated.

ARGUMENT

I.

TEXAS HAS NO LIKELIHOOD OF SUCCESS IN DEFENDING S.B. 4.

This is a clear case of both field and conflict preemption, and Texas’s contrary arguments lack

merit. While the State attempts to change the subject by emphasizing threshold defenses against

the Las Americas plaintiffs, those arguments contravene this Court’s precedents and are ultimately

beside the point because at a minimum the United States can doubtless sue to enjoin a preempted

2

state law. Thus, Texas cannot demonstrate a likelihood of success on the merits, and that alone is

reason enough to grant this application. 2

A. S.B. 4 is Preempted and None of Texas’s Contrary Arguments Is Likely to

Succeed.

As the plaintiffs demonstrated, S.B. 4 is straightforwardly preempted under settled law.

Vacatur App. 13-18. The “federal interest” in entry and removal is “so dominant that the federal

system will be assumed to preclude enforcement of state laws on the same subject.” Arizona, 567

U.S. at 399 (cleaned up). That authority is exclusive, as this Court has repeatedly made clear for

150 years. Moreover, Congress’s regulation of entry and removal in general, and entry between

ports in particular, is “so pervasive that Congress left no room for the States to supplement it.”

Arizona, 567 U.S. at 399 (cleaned up); see Vacatur App. 18-21.

S.B. 4 also conflicts with numerous aspects of Congress’s system, including the “careful

balance” Congress struck among various policy goals, such as discouraging irregular entry while

preserving access to asylum and other relief; its choice to vest federal Executive officers with

“broad discretion” at numerous stages; its recognition of the need to speak “with one voice” in the

realm of foreign affairs; and its specific policy judgments enshrined in federal law. Arizona, 567

U.S. at 396, 400-01, 409; see Vacatur App. 22-26. These many conflicts doom S.B. 4 in their own

right, and they “underscore the reason[s] for field preemption” here. Arizona, 567 U.S. at 403.

None of Texas’ responses to these fundamental flaws has merit.

2

This Court routinely grants review over immigration cases of national importance. See,

e.g., Arizona v. Mayorkas, 143 S. Ct. 478 (2022); United States v. Texas, 143 S. Ct. 51 (2022);

Biden v. Texas, 142 S. Ct. 1098 (2022); Wolf v. Innovation Law Lab, 141 S. Ct. 617 (2020); Dep’t

of Homeland Sec. v. Regents of the Univ. of Cal., 139 S. Ct. 2779 (2019). Texas asserts this Court

is “highly unlikely” to grant review and reverse if the court of appeals blesses S.B. 4. Opp. 9. But

it does not appear to contest that a grant of certiorari itself would be likely; after all, such a decision

would violate 150 years of this Court’s precedents, and represent an extraordinary rejection of

federal control over entry and removal.

3

1. Texas runs away from S.B. 4’s plain and obvious meaning. Texas repeatedly claims

that, under S.B. 4, “[a] return order merely requires that an alien be transported to a port of entry,”

where federal officials can decide how to handle them. Opp. 21; see id. at 5-6, 16, 17, 21 n.5. But

S.B. 4 could not be clearer: its removal orders “require the person to return to the foreign nation

from which the person entered.” Tex. Code of Crim. Proc. art. 5B.002(c), (d) (emphasis added);

Tex. Penal Code § 51.04(a)(2) (same). Texas agents are “required to monitor compliance with the

order” to return to Mexico. Tex. Code of Crim. Proc. art. 5B.002(g), (e)(2). And if the person

does not leave the United States, they commit a “felony of the second degree,” Tex. Penal Code §

51.04(b) (titled “Refusal to comply with order to return to foreign nation”), which carries up to 20

years in jail, id. § 12.33(a).

The Texas legislature and executive have elsewhere been forthright that S.B. 4 operates by

“expelling” thousands of noncitizens to Mexico. Vacatur App. 10, 17; App. 42-43. Indeed, that

was the point: The law’s sponsor explained that the “primary focus” of S.B. 4 “would be to return

those folks to the country from which they came.” Vacatur App. 8. And even the declaration

Texas attached to its opposition makes clear that an individual will only be “consider[ed] to have

complied with [a] return order” when they “cross to the Mexican side of the international bridge”

or are turned over to Mexican authorities. App. 36.

Texas makes no attempt to square its description of S.B. 4 as merely “facilitating aliens

finding their way to ports of entry,” Opp. 18, with the statute’s actual text. Nor does it deny that

noncitizens with Texas removal orders will face 20-year prison terms if they do not leave the

country and enter Mexico. Indeed, if all Texas sought to do was “transfer [a noncitizen] to the

federal government” and let “[t]he federal government then decide whether to remove” that person,

Opp. 5-6, S.B. 4’s removal provisions would make no sense. Texas cannot escape the clear

4

language of its own statute. But by refusing to defend it as written, the State underscores how

egregiously unlawful S.B. 4 is.

2. Texas’s analysis of precedent fares no better. 3 It claims that Arizona’s field preemption

analysis is limited to registration schemes only. Opp. 18-19. But the field preemption analysis in

Arizona and Hines applies with even greater force here. Vacatur App. 21-22. The State suggests—

with no explanation—that registration is more subject to preemption because it is “domestic.”

Opp. 18. As the plaintiffs have explained, that gets things backward: If state registration schemes

are preempted, state entry and removal schemes must be as well, since the latter strike at the very

heart of the sovereign federal immigration power. Vacatur App. 21. Texas has no response.

The preemption of S.B. 4 follows inexorably from Arizona; perhaps that is why Texas finds

it necessary to ask this Court to overrule that decision. Opp. 24 n.6. But even that would not allow

Texas to prevail. Arizona applied and built on over a century of clear precedent in reaffirming that

a state cannot “achieve its own immigration policy.” 567 U.S. at 408; id. at 409 (“[T]he removal

process is entrusted to the discretion of the Federal Government.”); see Vacatur App. 13-14 (citing

150 years of precedent to this effect). Texas tellingly does not even try to address this unbroken

line of precedent. It brushes aside Truax v. Raich, see Opp. 17, but fails to mention this Court’s

rejection of any state power even “tantamount to the assertion of the right to deny [noncitizens]

entrance and abode,” 239 U.S. 33, 42 (1915) (emphasis added); see Vacatur App. 18. Nor, in

contesting preemption, does Texas address Chy Lung—even though that case initiated 150 years

of this Court’s jurisprudence barring state entry and removal laws.

3

Texas invokes the presumption against preemption, Opp. 16, but fails to respond to the

plaintiffs’ explanation that it does not apply in this quintessentially federal arena, see Vacatur

App. 27.

5

Arizona’s analysis of the other provisions in that case further undercuts Texas’s defense.

Texas claims that the plaintiffs “do not attempt to equate” S.B. 4 with “the conflict preempted

provisions in Arizona,” Opp. 22, but in fact the plaintiffs explained why that analysis applies with

even greater force here, Vacatur App. 24 & n.11. Section 6 was invalid because it permitted “the

unilateral decision of state officers to arrest an alien for being removable absent any request,

approval, or other instruction from the Federal Government.” Arizona, 567 U.S. at 410. S.B. 4

does exactly that because it allows state officers to unilaterally arrest people for immigration

violations. But it also does much more, because it allows state officers to unilaterally prosecute

and remove people, without any federal involvement whatsoever. Vacatur App. 24. That is

impossible to square with Arizona’s Section 6 analysis.

S.B. 4 is also impossible to square with Arizona’s Section 2(B) analysis. While the Court

did not enjoin Section 2(B), that was only because the provision “could be read” to merely

authorize state officers to “communicate with ICE.” Arizona, 567 U.S. at 412-13; Vacatur App.

24 n.11. Nothing similar is true here, because S.B. 4 goes far beyond mere communication. Texas

suggests that, like Section 2(B), there might be some way in which S.B. 4 could “be construed” to

not conflict with federal law, Opp. 20, but (for obvious reasons) offers no actual suggestion for

how this could be accomplished. The statute’s terms speak for themselves, setting up unilateral

arrests, prosecutions, and removals, and specifically forbidding state officers from accommodating

federal procedures. Vacatur App. 23-24.

Instead of addressing these problems, Texas attempts to rewrite the Arizona opinion. For

example, the State denies that Arizona “requires federal supervision,” Opp. 23, but this Court was

clear: “[I]t would disrupt the federal framework to put state officers in the position of holding

aliens in custody for possible unlawful presence without federal direction and supervision.”

6

567 U.S. at 413 (addressing Section 2(B)) (emphasis added); see id. at 409-10 (unilateral arrest

authority in Section 6 “violates the principle that the removal process is entrusted to the discretion

of the Federal Government”) (emphasis added). The need for federal direction and supervision

precludes the idea that states can enact their own immigration schemes.

3. Texas asserts that Congress has invited the states to enact “concurrent regulation” and

set up alternative schemes to govern entry and removal. Opp. 16-17 (internal quotation marks

omitted). That is baseless. Vacatur App. 27. None of the statutes Texas cites remotely suggest a

congressional intent to yield this domain to the states. Opp. 17 n.4. 4 Rather, most of the statutes

involve domestic conduct that intersects with immigration only tangentially, if at all. For example,

states obviously can create speed limits applicable near immigration checkpoints—which are

generally well within the United States. See United States v. Martinez-Fuerte, 428 U.S. 543, 552

(1976) (addressing checkpoints). Federal law acknowledges that states can enforce those speed

limits, see 18 U.S.C. § 758; United States v. Clemente E., 392 F.3d 1164, 1165 (10th Cir. 2004),

but that is not evidence that Congress invited alternative state immigration schemes. 5

4

By contrast, in National Press Photographers Association v. McCraw, 90 F.4th 770, 797

(5th Cir. 2024), the federal agency specifically invited state regulation.

5

Likewise, Congress’s acknowledgement of state trafficking crimes does not show any

invitation for states to set up their own immigration systems. See Opp. 17 n.4. Congress

understood that those laws generally involve criminal conduct like “kidnapping, rape, slavery, or

other forced labor offenses” which occurs in the United States and need not pertain to noncitizens.

22 U.S.C. § 7105(b)(1)(E)(iv); see id. § 7105(b)(1)(F) (acknowledging U.S. citizen victims); see,

e.g., United States v. L., 990 F.3d 1058, 1060, 1064-65 (7th Cir. 2021) (affirming trafficking

conviction based on domestic conduct where noncitizens were coerced into sex work through

immigration, financial, and other threats). States’ ability to prosecute these crimes does not

undermine their exclusion from the field of entry and removal. Texas’s reliance on special visas

for crime and trafficking victims is ironic, however, given that S.B. 4 wipes away those and all

other forms of potential federal relief from removal. See Vacatur App. 20, 22-23, 31; see also

infra Section II.

7

The state fails to acknowledge that Congress made the federal laws “the sole and exclusive

procedure” for determining entry and removal questions. 8 U.S.C. § 1229a(a)(3); see Vacatur

App. 27. Nor does Texas contest that Congress has exhaustively and pervasively regulated both

entry and removal. Vacatur App. 19-21; Opp. 17. And the INA’s limited opportunities for states

to help federal officials do not extend or imply any invitation for states to set up their own schemes.

Opp. 17-18 & n.4 (citing 8 U.S.C. § 1357(g)). Just the opposite: As this Court held, those same

statutes show that Congress only wanted state assistance “in specific, limited circumstances,” and

any further involvement is preempted. Arizona, 567 U.S. at 410; see Vacatur App. 27; Pac. Gas

& Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212 & n.25 (1983)

(field of nuclear safety preempted even though statute “specifically authorized” a limited role for

states). That is particularly true given the longstanding dominant federal interest in this field. If

Congress had wanted to invite states to take control of the core sovereign activities of regulating

entry and removal, one would expect a far clearer statement than the tangential citations Texas can

muster. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Congress does not “hide

elephants in mouseholes”). 6

Nor does anything in Kansas v. Garcia, 140 S. Ct. 791 (2020), undermine preemption here.

See Vacatur App. 28. S.B. 4 does far more than “overlap to some degree” with the federal system.

Opp. 20 (quoting Kansas, 140 S. Ct. at 806). It displaces and interferes with a comprehensive

federal system, in which Congress “made a considered decision” to balance enforcement,

humanitarian relief, and foreign affairs, by placing discretion in the hands of federal officials;

“[n]othing similar” was present in Kansas. 140 S. Ct. at 806.

6

Texas’s separate “enforcement of its state criminal trespass law” at the border, Opp. 23,

is not before the Court. Moreover, that operation differs from S.B. 4 in many respects including

that it lacks any reentry or removal provisions. And in any event, its legality is contested.

8

4. Texas suggests that even if S.B. 4 is almost entirely preempted, the Court should still

permit the State to enforce it, across the board, because there are a few situations in which (the

State claims) it could be valid. Vacatur Opp. 8, 29, 31 (citing United States v. Salerno, 481 U.S.

739 (1987)). Everything about that argument is wrong.

For starters, S.B. 4 has no valid applications, because it is field preempted in every single

instance. Each time it is enforced, it would contravene Congress’s decision “to foreclose any state

regulation in the area” of entry and removal. Murphy v. NCAA, 584 U.S. 453, 479 (2018)

(emphasis added) (quoting Arizona, 567 U.S. at 401). S.B. 4 also conflicts with federal law in

every application. Every time the State orders someone removed—which is mandatory after every

conviction—it defies Congress’s mandate that people can only be removed after following the

procedures laid out in the INA. See Vacatur App. 23. And every time the State enforces S.B. 4,

it denies federal officials the discretion that Congress gave them as a cornerstone of the federal

system. Id. at 23-25. Notably, Texas offers no response to most of these conflicts. Rather, in

grasping for a way to show harmony between S.B. 4 and federal law, Texas mentions a few

situations where S.B. 4 would not apply. Opp. 16 (people already granted asylum, but only as to

the entry crime), 23 (people who enter at ports, again limited to the entry crime). But situations

like these in which the statute is “irrelevant” cannot “prevent facial relief.” City of Los Angeles v.

Patel, 576 U.S. 409, 418-19 (2015).

Even if Texas could come up with a valid application or two, that is not enough to avoid

an injunction. “It is always possible to imagine” some outlier scenario where a preempted state

law might not conflict with federal law (absent field preemption). League of Women Voters of

Ind., Inc. v. Sullivan, 5 F.4th 714, 728-29 (7th Cir. 2021). If that were enough, most preempted

state laws could never be enjoined, and instead, the United States and other injured parties would

9

have to challenge them application by application, in countless separate cases, even when in reality

the state law is preempted in all or nearly all cases. “Such an approach would inflict enormous

costs on both courts and litigants,” and would “insulate [preempted] statutes from most facial

review.” Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 624-26 (2016) (addressing Texas’s

severability argument), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022). This Court has never followed such a counterintuitive approach. See

Vacatur App. 29-30. Texas offers no response.

5. Texas suggests that even if the Court halts the removal provisions of S.B. 4, it should

let the criminal entry and reentry provisions take effect. Opp. 32. Texas never requested this

division from either the district court or the court of appeals, so this Court should decline to

entertain its argument in the first instance. See City of Austin v. Reagan Nat’l Advert. of Austin,

LLC, 596 U.S. 61, 76 (2022) (this Court is one “of final review and not first view”) (internal

quotation marks omitted).

In any event, that argument is flawed for multiple reasons. For one thing, that outcome

would contravene the intent of the Texas Legislature, which made abundantly clear that it did not

want a prosecution-only system without removals. See Vacatur App. 7-8 & nn.2-3. Texas does

not contest that history. Instead, it invokes S.B. 4’s general severability clause, but “a severability

clause is an aid merely; not an inexorable command.” Whole Woman’s Health, 579 U.S. at 62426 (quoting Reno v. ACLU, 521 U.S. 844, 884-885 & n. 49 (1997)). Under Texas law, there is no

severability where the valid and invalid “provisions are connected in subject-matter, dependent on

each other, [and] operat[e] together for the same purpose.” Rose v. Doctors Hospital, 801 S.W.2d

841, 844 (Tex. 1990) (internal quotation marks omitted); see Builder Recovery Servs., LLC v. Town

of Westlake, 650 S.W.3d 499, 507 (Tex. 2022) (continuing to apply the Rose standard). S.B. 4

10

plainly fits that description, because its prosecution and removal provisions operate together at

every step, beginning at a person’s first appearance and ending when a person has been removed.

Vacatur App. 7-8. The Court should not “use its remedial powers to circumvent the intent of the

legislature” and enact the system that Texas rejected. United States v. Booker, 543 U.S. 220, 247

(2005) (cleaned up); see Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2209 (2020) (no severability,

despite clause, where “there is strong evidence that [the legislature] intended otherwise”) (internal

quotation marks omitted).

But even if the legislature had enacted a narrower bill containing entry and re-entry crimes,

it would be still preempted. “Policies pertaining to the entry of aliens and their right to remain

here are entrusted exclusively to Congress.” Arizona, 567 U.S. at 409 (quoting Galvan v. Press,

347 U.S. 522, 531 (1954)) (cleaned up); see also e.g., Plyler v. Doe, 457 U.S. 202, 229 n.23 (1982)

(cited by Texas) (explaining that “the State has no direct interest in controlling entry into this

country, that interest being one reserved by the Constitution to the Federal Government” and

noting “the exclusive federal control of this Nation’s borders”); Chy Lung, 92 U.S. at 280.

Regulation of entry is no less a core aspect of federal sovereignty than regulation of removal. See

Vacatur App. 14; Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892). If such a law “were

valid, every State could give itself independent authority to prosecute federal [entry] violations,

diminishing the Federal Government’s control over enforcement[,] detracting from the integrated

scheme of regulation created by Congress,” and allowing prosecution “even in circumstances

where federal officials in charge of the comprehensive scheme determine that prosecution would

frustrate federal policies.” Arizona, 567 U.S. at 402 (cleaned up).

Moreover, contrary to Texas’s repeated protestations that S.B. 4 “mirrors” federal law,

Opp. 1, 6, 10, 18, 23, 32, 33, 34, there are serious “inconsistenc[ies] between [S.B. 4] and federal

11

law” that both conflict with federal law and “underscore the reason for field preemption,” Arizona,

567 U.S. at 402-03. Most glaringly, the state re-entry crime fails to track its federal counterpart,

criminalizing people whom the federal government has permitted to return to this country. Vacatur

App. 25-26. Texas entirely fails to acknowledge that blatant mismatch. See Opp. 16 (incorrectly

suggesting there is an affirmative defense to the state re-entry crime).

6. Finally, Texas doubles and triples down on its breathtaking claim to state supremacy.

Texas confirms that, indeed, it believes it may unilaterally declare a “war”—never mind on whom

exactly—as a justification for displacing federal immigration law, and neither Congress, nor the

President, nor even this Court gets to “second guess[]” the State’s “exclusive authority to decide.”

Opp. 29-30. As the district court explained, such a claim to “nullification” authority “is antithetical

to the Constitution and has been unequivocally rejected by federal courts since the Civil War.”

App. 3. The district court ably dismantled Texas’s incredible and unsupported attempt to wring

“supreme and unchallengeable” state power, Sterling v. Constantin, 287 U.S. 378, 397-98, 402

(1932), from an “isolated clause[] . . . torn from context.” Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 635 (1952) (Jackson, J., concurring); see App. 65-98 (considering and refuting all

of Texas’s arguments).

And, of course, much the same rhetoric was expressed by opponents of immigration in

years past. See supra. Pennsylvania warned of the threat of spies and enemies among immigrant

communities at the height of World War II. See Br. for Appellant at 15, Hines v. Davidowitz, 312

U.S. 52 (1941). At that time of war, fear of sabotage was not idle. See Ex parte Quirin, 317 U.S.

1 (1942). The State of Arizona likewise warned against the same threats Texas highlights. See

Br. for Petitioners 3, Arizona v. United States, 567 U.S. 387 (2012) (“drugs,” “criminals,” and

“cartels”). The notion that this Court just forgot to check the Constitution in reaffirming federal

12

control over immigration in those cases strains credulity. The Court should reject this doctrine of

disunion out of hand.

B. Texas’s Threshold Arguments Could Not Justify a Stay and in Any Event

Lack Merit.

Texas raises various threshold issues, arguing that the plaintiffs lack standing and a cause

of action. But for present purposes, Texas’s arguments about the Las Americas plaintiffs are

irrelevant.

The Las Americas case is consolidated with the United States’ case; a single

preliminary injunction was entered in the two cases, and the court of appeals stayed that injunction

in the unified appeal from that order. Texas does not appear to contest the federal government’s

standing, and—notwithstanding Texas’s extraordinary arguments to the contrary, Opp. 12-15—

there can be no real doubt that the United States may sue in its own courts to block individual

states from usurping federal authority, App. 26, 27. That is enough to vacate the stay. See Bowsher

v. Synar, 478 U.S. 714, 721 (1986) (only addressing one plaintiff’s standing in consolidated case,

and noting the Court “need not consider the standing issue” for others).

In any event, the State’s threshold arguments are meritless. The Las Americas plaintiffs

have standing. The district court applied this Court’s longstanding precedent that an organizational

plaintiff “may establish injury in fact by showing that it had diverted significant resources to

counteract the defendant’s conduct.” NAACP v. City of Kyle, Tex., 626 F.3d 233, 238 (5th Cir.

2010) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see App. 12-13. The

district court found that the organizational plaintiffs made that showing—unsurprisingly, given

that the plaintiffs’ mission and work are dedicated to helping individuals secure relief from

deportation. Defendant McCraw projected 80,000 additional arrests each year under the new law,

upending the plaintiffs’ operations and forcing them to dramatically alter their provision of legal

services. See App. 13-16. Texas has not contested that factual showing.

13

Texas would write Havens out of existence, relying on one out-of-context quote from

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). But that case addressed a particular

situation, where “an individual is subject to . . . a threat” of “arrest, prosecution, or other

enforcement action.” Id. at 158. In the context of other injuries, like the organizational injury

recognized in Havens, it makes no sense to require a threat of prosecution for a plaintiff who is

injured by a policy but not subject to prosecution. See App. 11-13. Contrary to Texas’s theory,

courts routinely adjudicate claims by plaintiffs who are injured but not directly regulated by a

policy. See, e.g., Shelby County v. Holder, 570 U.S. 529, 537 (2013) (describing cases brought

“to block voting laws from going into effect”); Sierra Club v. Morton, 405 U.S. 727, 734 (1972)

(environmental litigation); Biden v. Nebraska, 143 S. Ct. 2355, 2366 (2023) (Administrative

Procedure Act litigation by states harmed by third-party regulation). 7

Texas also argues that the plaintiffs lack appellate standing. Opp. 11. But the court of

appeals’ administrative stay “purports to bring [S.B. 4] back into legal effect.” W. Virginia v.

Env’t Prot. Agency, 597 U.S. 697, 718-19 (2022). Thus, the stay “inflicts . . . the same injury” as

S.B. 4 itself, and appellate standing is proper for the same reasons as standing in district court. Id.

Texas invokes sovereign immunity and argues that Ex parte Young, 209 U.S. 123 (1908),

does not apply because “no Texas official will enforce any part of this law against these plaintiffs.”

Opp. 11 (emphasis added). But it does not contest the defendants will enforce S.B. 4. And this

Court has squarely rejected such a rule: “[T]here is no warrant in our cases for making the validity

of an Ex parte Young action turn on the identity of the plaintiff.” Virginia Office for Prot. &

7

With regard to El Paso County, Texas argues only that “political subdivisions generally

lack standing to sue their parent States.” Opp. 10. But this Court “has repeatedly entertained suits

against a state by a subdivision of the state, including cases under the Supremacy Clause.” TweedNew Haven Airport Auth. v. Tong, 930 F.3d 65, 73 (2d Cir. 2019) (collecting six examples); see

Lassen v. Arizona, 385 U.S. 458, 459 n.1 (1967); App. 18-20.

14

Advocacy v. Stewart, 563 U.S. 247, 256 (2011); see id. at 252, 256 (permitting suit by government

agency which sought access to records).

Texas also claims the plaintiffs lack a cause of action. Opp. 12. But this Court has

recognized that “‘relief may be given in a court of equity’” to enjoin preempted state laws, which

“reflects a long history of judicial review of illegal executive action, tracing back to England.”

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (quoting Carroll v. Safford,

3 How. 441, 463 (1845)); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983)

(collecting cases); Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 20 (2013). When a

plaintiff sues under this equitable cause of action, there is no need for any statutory “rights-creating

language,” Opp. 12 (internal quotation marks omitted); rather, plaintiffs can sue unless Congress

acts affirmatively to “preclude the availability of equitable relief,” Armstrong, 575 U.S. at 328,

and Texas makes no argument that Congress has done so here. See also id. at 331-32 (assessing

the availability of an implied statutory cause of action separately from the equitable cause of

action).

Texas’s threshold arguments about the Las Americas plaintiffs thus run afoul of this

Court’s clear holdings. But there is no need to resolve any of them now; the involvement of the

United States renders these issues little more than a distraction.

II.

THE EQUITIES SUPPORT VACATUR.

The court of appeals’ order, if it stands, will upend a status quo that this Court has

steadfastly maintained for well over a century. Few principles in law have been so stable as the

exclusive federal power and responsibility over entry and removal. Over many decades, this Court

has repeatedly barred state efforts to take control of immigration, even in the face of concerns

similar to those Texas expresses now. This durable and longstanding status quo is itself a powerful

reason to vacate the court of appeals’ stay.

15

Texas contends that the court of appeals’ rapid briefing schedule means that S.B. 4 should

be allowed to take effect. But the plaintiffs previously explained that S.B. 4 is poised to

immediately begin generating illegal state deportation orders. Vacatur App. 1-2, 7, 10, 31.

Hundreds or thousands of people could be illegally removed to Mexico in the weeks or months it

will take to get a decision from the court of appeals. See id. at 10, 31 (state projecting 80,000

arrests per year). Nor does the expedited schedule provide any assurance about when the court of

appeals will rule on the deferred motion for a stay pending appeal. See id. at 11 n.5 (example of

“administrative” stay in place for three months).

None of the equities favor Texas. It suggests that it needs S.B. 4 to address certain criminal

activity occurring within the State. Opp. 2-3. But Texas law already criminalizes all of the

activities it mentions. See, e.g., Tex. Health & Safety Code § 481.112-141; Tex. Penal Code

§§ 20A.02, 76.02; App. 108 (criminal penalties for drug trafficking, human trafficking, terrorism).

Texas thus has ample tools to address this conduct, without creating its own immigration system.

Nor does S.B. 4 meaningfully address the primary criminal activity that Texas emphasizes:

the smuggling of fentanyl into the United States. Opp. 2, 3, 28. Texas stresses noncitizens who

enter between ports of entry. Id. at 2, 18. But it is well-established that fentanyl overwhelmingly

enters the country at ports, not between them, and is smuggled by U.S. citizens, not migrants.

David Bier, Fentanyl Is Smuggled for U.S. Citizens by U.S. Citizens, Not Asylum Seekers, Cato

Inst. (Sept. 14, 2022) (“[F]entanyl is smuggled through official crossing points specifically because

it is easier to conceal it on a legal traveler or in legal goods than it is to conceal a person crossing

the border illegally.”), https://perma.cc/8RTW-MENH; see U.S. Sentencing Comm’n, Quick

Facts: Fentanyl Trafficking Offenses (2022), https://perma.cc/XDY9-S49M; Statement of Brian

Sulc, Executive Director, Transnational Organized Crime Mission Center, Office of Intelligence

16

and Analysis, Department of Homeland Security (May 18, 2022), https://perma.cc/76WQ-4YTU.

S.B. 4 will therefore do little to address fentanyl smuggling. Texas does not contest or even

acknowledge this, even though the plaintiffs have pointed it out at every stage of the case.

To the contrary, allowing S.B. 4 to take effect would, among other things, undermine

federal efforts to address human trafficking and other crimes. App. 15, 105-07. Federal law

encourages people to help law enforcement by offering visas to victims and witnesses who come

forward and support an investigation or prosecution. See 8 U.S.C. § 1101(a)(15)(U), (T); 8 C.F.R.

§§ 214.11, 214.14. And federal officials have numerous other tools—like deferred action and

prosecutorial discretion—that they can use to encourage people to help with criminal enforcement.

S.B. 4 erases these tools, because it requires state judges to order people removed even if they are

seeking visas and other federal protections for crime victims and witnesses. See Tex. Code of

Crim. Proc. art. 5B.003. And by cutting federal officials out of enforcement decisions, S.B. 4 takes

away their ability to encourage cooperation by sparing victims and witnesses from prosecution or

removal. Despite the concern Texas expresses for victims of crime, S.B. 4 would deny them the

explicit protections that federal law provides.

And it would similarly undermine the law

enforcement operations of El Paso County, along with countless other local governments in Texas.

Vacatur App. 31.

Texas downplays the chaos that S.B. 4 will inflict on the plaintiffs and the general public.

Opp. 33. But it ultimately cannot contest that S.B. 4 would upend the immigration system in Texas

and the lives of thousands of individuals and families. Migrants seeking safety in this country will

be met with a state-law system that eliminates all relief and intense pressure to accept removal and

depart the country to avoid a prison term. See Nken v. Holder, 556 U.S. 418, 436 (2009) (“[T]here

is a public interest in preventing [people] from being wrongfully removed, particularly to countries

17

where they are likely to face substantial harm.”). Non-Mexicans will be forced to seek entry into

Mexico against that country’s will, creating stand-offs and confusion at ports of entry that rank

among the busiest border crossings in the world. 8 People issued state removal orders but who are

eligible for relief in the federal system will be subject to conflicting pronouncements from

competing immigration regimes. Advocates and local governments will be forced to scramble to

provide services to vulnerable people caught up in this new system. And communities throughout

Texas will be forced to live in fear as state, not federal, officials will now decide who should be

arrested, prosecuted, and deported without the protections and procedures enshrined in federal law.

8

Cf., e.g., Shelly Hagan, Texas Governor’s Border Slowdown Cost $4 Billion, Research

Shows (Bloomberg Ap. 20, 2022), https://perma.cc/223L-V7LJ (describing chaos resulting from

Governor Abbott’s prior interference with the operation of ports of entry).

18

CONCLUSION

The Court should vacate the stay entered by the court of appeals.

Respectfully submitted,

David A. Donatti

Adriana C. Piñon

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF TEXAS, INC.

P.O. Box 8306

Houston, TX 77288

T: (713) 942-8146

Tamara F. Goodlette*

Daniel Hatoum*

Erin D. Thorn*

TEXAS CIVIL RIGHTS PROJECT

1017 W. Hackberry Ave.

Alamo, TX 78516

T: (512) 474-5073, ext. 207

Jo Anne Bernal**

El Paso County Attorney

320 S. Campbell St., Suite 200

El Paso, Texas 79901

T: (915) 273-3247

Bernardo Rafael Cruz**

Assistant County Attorney

320 S. Campbell St., Suite 200

El Paso, Texas 79901

T: (915) 273-3247

* Attorneys for Applicants Las Americas

Immigrant Advocacy Center and American

Gateways

** Attorneys for Applicant County of El

Paso

/s/ Cody Wofsy

Cody Wofsy

Counsel of Record

Spencer Amdur

Cecillia D. Wang

Hannah Schoen

Morgan Russell

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

425 California Street, Suite 700

San Francisco, CA 94104

T: (415) 343-0770

cwofsy@aclu.org

Anand Balakrishnan

Omar Jadwat

Lee Gelernt

Wafa Junaid

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

212-549-2660

David D. Cole

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

Attorneys for Applicants

Las Americas Immigrant Advocacy Center,

American Gateways, and County of El Paso

Dated: March 12, 2024

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