The U.S. Supreme Court’s decision to allow Texas’ border bill, SB 4, to go into effect was quickly overturned by the Fifth Circuit Court of Appeals. Shortly after the Supreme Court’s ruling, the Fifth Circuit Court issued two notices, one of which reversed its previous ruling from March 2.
In a recent development, Texas’ law faced a setback when a district court issued an injunction to prevent its implementation. However, Texas promptly appealed this decision, and the Fifth Circuit came to their aid by suspending the district court’s ruling, thus allowing the law to be enforced while the appeal is ongoing.
In a surprising turn of events, the Fifth Circuit delivered a significant blow to the implementation of the law by reversing the previous ruling and effectively blocking its enforcement.
The recent developments in Texas have resulted in a surprising turn of events, as the state is no longer able to enforce a law that criminalizes illegal entry into the state from a foreign nation. Additionally, law enforcement officials are now prohibited from transporting individuals who have crossed the border illegally to a port of entry under the authority of this law. This sudden change has been described by some as “legal whiplash,” highlighting the unexpected nature of the situation.
On Tuesday, the U.S. Supreme Court voted 6-3, allowing the law to go into effect based on procedural grounds. The justices had differing opinions on the use and application of administrative stays, but did not make a ruling on the merits of the case. They expressed concern over the Fifth Circuit’s failure to address Texas’s motion for a stay pending appeal, and subsequently sent the case back to the Fifth Circuit with instructions.
Justices Amy Coney Barrett and Brett Kavanaugh noted in their concurrence that the case was in an unusual procedural posture as the Fifth Circuit had not yet made a decision on whether a stay pending appeal was warranted.
The Fifth Circuit should take the lead and apply the Nken factors to determine the motion for a stay pending appeal before this court intervenes on the emergency docket. It is expected that the Fifth Circuit can do so promptly. Texas’s motion for a stay pending appeal has been fully briefed in the Fifth Circuit since March 5, nearly two weeks ago. Currently, the merits briefing on Texas’s challenge to the district court’s injunction of SB 4 is in progress. If a decision is not reached soon, the applicants may have to come back to this court.
The Fifth Circuit promptly responded to the high court’s decision by announcing that it had scheduled a hearing on the motion to stay pending appeal. The hearing will take place on March 20 at 10 am ET and will be conducted via Zoom. The court also provided instructions for filing oral arguments electronically.
At 10:44 pm ET, less than nine hours after the Supreme Court’s decision, the Fifth Circuit issued a reversal of its March 2 ruling, almost five hours later.
Chief Judge Priscilla Richman, along with judges Andrew Oldham and Irma Ramirez, has led a panel that has made a decision. They concluded that the administrative stay, which was put in place by a motions panel on March 2, 2024, should be lifted. The panel has dissolved the administrative stay, which had previously blocked the lower court’s injunction that prevented the law from taking effect.
In a rare move, Oldham expressed his dissent with the panel’s decision, highlighting that “A preliminary injunction is an extraordinary measure that changes the current state of affairs. … A stay, on the other hand, maintains the status quo while an appellate court evaluates the legality of such alteration.”
The Supreme Court of the United States has reinstated an administrative stay in order for our panel to review the State’s request for emergency relief under Federal Rule of Appellate Procedure. Pending tomorrow’s oral argument on the question, I will maintain the stay.
The panel of judges commenced oral arguments on Wednesday morning to discuss Texas’ request for a stay on the district court’s ruling.
The panel of judges is currently deliberating on whether to grant a stay pending appeal. Last night, they were considering whether to maintain the administrative stay until they reached a decision on the initial question.
The injunction from the district court is still in effect, which means that SB 4 is currently on hold.
The parties are set to argue the merits of the case when it is heard on April 3rd.
The panel’s ruling on the case is still pending, and it is uncertain when a decision will be made. Additionally, it is uncertain whether the full court would agree to hear the case if requested.
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