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  • Carolina Journal Staff

Supreme Court allows Texas to arrest illegal immigrants; what could that mean for other states?

In a 6-3 decision Tuesday, the US Supreme Court ended a stay on a Texas state law that allows local law enforcement to arrest those who have crossed the US-Mexico border illegally. The high court’s three liberal justices dissented, writing that the decision invites “further chaos and crisis in immigration enforcement.”

The majority-conservative court allows Texas’ SB 4 to take effect, by overturning a lower court’s “stay” and refusing to continue blocking the law. The Biden administration had asked lower courts to freeze the law passed by the Texas legislature and signed by Gov. Greg Abbott, saying it violated the US Constitution by interfering in the federal government’s authority on immigration policy.

“Texas’s motion for a stay pending appeal was fully briefed in the Fifth Circuit by March 5, almost two weeks ago. Merits briefing on Texas’s challenge to the District Court’s injunction of S. B. 4 is currently underway. If a decision does not issue soon, the applicants may return to this Court,” wrote Justice Amy Coney Barrett in a concurring opinion joined by Justice Brett Kavanaugh.

The six-justice majority offered no commentary on its decision.

Abbott said that Texas was forced to pass the measure and empower the state’s law enforcement because the Biden administration’s policy had created a crisis and left them to fend for themselves on the southern border.

Under the new Texas law, it is a crime to enter, or re-enter, the state illegally, punishable by a minimum of a Class B misdemeanor and 180 days in jail. Local law enforcement would have the authority to arrest, detain, and deport those accused of violating that law. Judges would also be able to order illegal immigrants to return to their home country. It would be a felony carrying 20 years in jail if they do not comply. The lawsuit over SB 4 was filed by the American Civil Liberties Union of Texas and the Texas Civil Rights Project. It was combined with one filed by the US Department of Justice.

“This law will disrupt sensitive foreign relations, frustrate the protection of individuals fleeing persecution, hamper active federal enforcement efforts, undermine federal agencies’ ability to detect and monitor imminent security threats, and deter noncitizens from reporting abuse or trafficking,” wrote Justice Sonia Sotomayor in dissent.

With the law no longer blocked, Abbott says Texas is implementing it immediately. However, the 5th Circuit will hear arguments in the lawsuits in April.


The ruling comes in an election year when the border crisis is the top voter concern. In the Carolina Journal Poll released on March 12, a quarter of North Carolina voters said immigration was their most important issue, followed by the economy (17.8%), abortion (12.7%), and inflation (9.5%).

Since January 2021 more than 7.2 million illegal immigrants have entered the United States through the southern border, according to US Customs and Border Patrol. That is an amount greater than the population of 36 states. The CBP also reports 1.8 million known “gotaways” who evaded US Border Patrol’s federal authorities. 


The high court’s decision deals solely with the lawsuit over Texas’ state law. The North Carolina General Assembly has not passed a measure like SB 4, and is unlikely to in the upcoming short session because it generally does not launch sweeping new bills. Jon Guze, senior fellow of legal studies at the John Locke Foundation, says it’s too early to tell whether this could open the door for giving broader authority to states on immigration.

“The Constitution gives Congress the power to establish a ‘uniform Rule of Naturalization,’ said Guze. “It doesn’t say anything about making and enforcing immigration laws, which, at least for textualists and originalists, ought to mean those are matters for the states. Contrary to what some have suggested, moreover, I don’t think the Commerce Clause gives Congress the power to regulate immigration either. Migration is not commerce as that term was understood at the time of ratification.”

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