Use this button to switch between dark and light mode.

30 Hours of SB4 Whiplash: Prof. Steve Vladeck

March 20, 2024 (13 min read)

Prof. Steve Vladeck, Mar. 20, 2024

"[I]t’s been a truly chaotic day-and-a-half here in Texas with regard to legal developments concerning the state’s controversial new immigration law—SB4. And I thought it would be helpful to try to put into one (hopefully accessible) narrative exactly what’s happened—and why.

I. How We Got Here: SB4 and the First Two Suits Challenging It

I’ve written before about SB4—which, to make a very long story short, creates a novel kind of state-level deportation regime by creating state-law crimes relating to immigration status and creating a state-level process for moving those convicted of those crimes to the nearest international port of entry. The law was designed, at least in some respects deliberately, to provoke a conflict with the Supreme Court’s 2012 ruling in Arizona v. United States—in which a 5-3 majority (including Chief Justice Roberts) sided largely with the federal government in blocking a less-aggressive effort by Arizona to create state-level immigration crimes.

Arizona is a classic preemption case—with the Supreme Court holding that the federal statutory scheme setting forth immigration policy and governing immigration enforcement bars states from having different policies and enforcement mechanisms. The only plausible ways around it are to argue that it should be overruled (which, of course, only the Supreme Court can do), or to rely upon Texas’s equally novel (and independently problematic) claim that its “constitutional right to self-defense” overrides the federal statutes that, under Arizona, bar states from having their own immigration regimes.

The key, for present purposes, is that either avenue to upholding SB4 would require something really novel. And the less radical path of the two can only come from the Supreme Court.

SB4 was originally set to go into effect on Tuesday, March 5. But in a consolidated ruling in a pair of lawsuits filed in federal court in Austin (one by the federal government; one by private immigration groups), a district judge on Thursday, February 29 issued a preliminary injunction barring SB4 from going into effect—concluding that SB4 is clearly preempted by federal law under Arizona, and not giving much stock to the constitutional self-defense claim. The upshot of the injunction was that SB4 would not go into effect until and unless an appellate court acted on it.

II. The Fifth Circuit’s March 2 Order and the Applications to SCOTUS

Enter, the Fifth Circuit. Texas promptly appealed Judge Ezra’s ruling and asked the Fifth Circuit for a “stay” pending appeal—an order that would allow SB4 to go into effect while Texas’s appeal played out. Two days after Judge Ezra’s injunction, on Saturday, March 2, a three-judge “motions” panel of the Fifth Circuit (Judges Clement, Engelhardt, and Ramirez) granted a stay by a 2-1 vote, but in a way that was itself complicated.

First, the panel styled its intervention as an “administrative” stay—a temporary block on the lower-court ruling to buy the court of appeals more time to consider whether to freeze it for the entire appeal. Second, it deferred a ruling on whether to issue that longer stay to the “merits” panel—the different three-judge panel that would hear Texas’s appeal of the injunction itself. Third, it put its own ruling on hold for seven days—to give the federal government and the private plaintiffs time to ask the Supreme Court to step in and keep SB4 on hold. (Judge Ramirez publicly dissented from the first of these holdings; not the second or third.)

In other words, because of the Fifth Circuit motions panel’s intervention, SB4 was set to go into effect at the end of the day on Saturday, March 9.

III. Justice Alito’s “Administrative” Stays

Justice Alito is the “circuit justice” for the Fifth Circuit. That means that all emergency applications in cases coming from the Fifth Circuit and its three states (Louisiana, Mississippi, and Texas) start with him. That’s what happened with the emergency applications filed by both the federal government and the private plaintiffs in the SB4 case, asking Alito (and, through him, the full Court) to keep SB4 on hold—by “vacating” the “administrative stay” that the Fifth Circuit panel had issued on March 2.

At first, Alito moved quickly. By the end of the day on Monday, March 4, Alito had issued two administrative stays of his own—which kept SB4 on hold through 5:00 EDT on Wednesday, March 13 while the full Court considered what to do. Then, last Tuesday (March 12), Alito acted again to extend his own arbitrary deadline—keeping SB4 on hold through 5:00 EDT this Monday, March 18. As I noted yesterday on social media, Alito has a unique habit of imposing arbitrary deadlines that the Court ends up being unable to meet; of the 21 administrative stays that justices have issued since the beginning of the October 2020 Term, 11 have had no expiration date; 10 have had deadlines. Nine of the 10 with deadlines have come from Justice Alito—who's had to issue eight extensions of those deadlines.

In this case, Alito’s second arbitrary deadline (5:00 EDT this Monday) caused real mischief, because it came and went, surprisingly, with no public action from either him or the Court. Thus, at 5:00 EDT this Monday, Alito’s administrative stays expired, and SB4 publicly appeared to go into effect—at least for a few minutes.

But by 5:04 ET, the Supreme Court’s press corps had received further extensions of the administrative stays from Alito—putting SB4 back on hold. It is not clear at exactly what time Alito issued those orders (I’ve been arguing for years that the Supreme Court needs to timestamp these kinds of rulings, but it still doesn’t). To public appearances, though, SB4 was briefly in effect Monday afternoon, before it wasn’t. If nothing else, the awkward denouement seemed to suggest that the Court had been very close to ruling on Monday afternoon (or else Alito would’ve acted to extend the administrative stays earlier), but it ended up not doing so.

IV. The Full Court’s Tuesday Afternoon Ruling and the Barrett/Kavanaugh Concurrence

That brings us to yesterday. Shortly after 2:00 EDT, the full Court acted on the two pending emergency applications—and denied them, over public dissents from Justices Sotomayor, Kagan, and Jackson. Because the Court’s order also vacated Justice Alito’s administrative stays, SB4 went into effect as soon as it came down.

The “what” is easy enough to explain. The “why” is quite a bit messier. As is typical for Supreme Court rulings on emergency applications (sigh), there was no majority opinion or majority explanation. But, the two justices whose votes were most likely the difference—Justices Kavanaugh and Barrett—signed a concurring opinion (by Barrett) to explain their votes. That opinion made two very different points:

First, it articulated the (novel) view that the Supreme Court ought not to be in the business of reviewing true “administrative” stays by courts of appeals—which are, by design, supposed to be short-term interventions solely to give the court time to consider whether to issue a stay for the duration of the appeal. Although one could quibble (and the separate dissenting opinions by Justices Sotomayor and Kagan both did) with whether it’s fair to characterize the Fifth Circuit’s open-ended intervention here as a true “administrative” stay, the upshot was that the justices most likely to be the median votes here provided a procedural, not substantive, reason for allowing SB4 to go into effect. (I’m going to have a lot more to say about Justice Barrett’s procedural argument in tomorrow’s bonus issue.)

Critically, though, the opinion didn’t stop there. Second, the Barrett/Kavanaugh concurrence went out of its way to nudge the Fifth Circuit—noting not only that the Fifth Circuit should be able to rule on the stay pending appeal “promptly,” but that, “If a decision does not issue soon, the applicants may return to this Court.” The Fifth Circuit had already scheduled oral argument on Texas’s appeal for April 3—a fact of which the justices would clearly have been aware. But instead of suggesting that the Fifth Circuit could wait until then, the last part of the Barrett/Kavanaugh concurrence seemed like a not-so-subtle shove to the court of appeals to … not wait that long.

A lot of folks on both sides of the ideological spectrum focused on the first takeaway from the Barrett/Kavanaugh concurrence, and missed or downplayed the second. Thus, the ruling was portrayed as a “major victory” by Texas Attorney General Ken Paxton and those who are publicly supporting Texas’s unilateral efforts to take over national immigration policy, and provoked loud criticism from folks more legally opposed to those efforts and/or worried that this ruling signaled the Court’s willingness to revisit Arizona. At least in its immediate aftermath, that reaction was understandable; SB4 was now in effect.

But the second part of the Barrett/Kavanaugh concurrence (e.g., its discussion of why “administrative” stays aren’t “value neutral”) wasn’t directed to a public audience. It was directed at the Fifth Circuit. And although a different panel might have reacted differently, its message was received rather quickly by this one.

V. The Fifth Circuit Responds—Twice

At 6:01 EDT last night—less than four hours after the Supreme Court ruled—the three-judge Fifth Circuit panel that was (and still is) set to hear Texas’s full appeal of the district court’s preliminary injunction on April 3 issued an order of its own. In it, the court set Texas’s motion for a stay pending appeal for oral argument this morning (via Zoom) at 10:00 CDT/11:00 EDT. In other words, having previously taken no action on Texas’s motion for a stay pending appeal (which the motions panel had deferred to the merits panel), the merits panel (which, we learned, included Chief Judge Richman, Judge Oldham, and Judge Ramirez) was impelled by the Barrett/Kavanaugh concurrence to at least hold argument on the motion—presumably with an eye toward resolving it, one way or the other, in short succession.

If things had ended there, the oral argument could have been seen as a procedural concession to the Supreme Court—not a substantive one. But then, at 10:44 EDT (because lower federal courts do time-stamp their orders), the panel acted again. In a short order, the panel noted that “a majority of the panel that the administrative stay entered by a motions panel on March 2, 2024, should be lifted.” Judge Oldham wrote a short dissent. In other words, as of 10:44 EDT, less than nine hours after the Supreme Court had allowed it to go into effect, SB4 was back on hold, because the Fifth Circuit had “dissolved” the administrative stay that had been blocking Judge Ezra’s injunction. (Part of the problem with describing these developments is that words terms like “hold” and “in effect” could be describing the law itself or Ezra’s injunction against it.)

So what happened? My best guess is that, having started preparing for today’s hastily scheduled oral argument (which the entire panel likely agreed to after reading Barrett’s concurrence), Chief Judge Richman decided not to wait that long (Judge Ramirez had been the dissenter on the original motions panel, so her opposition to the administrative stay was already a matter of record). That’s significant because, even though today’s argument is going forward on a technically different question (“should the Fifth Circuit issue a stay pending appeal”) than the one the panel acted on last night (“should the administrative stay remain in effect until we answer that question”), it’s really difficult to see how Chief Judge Richman might think the answer to the first question is yes if she thought the answer to the second question was no.

VI. What Happens Now?

If you’re still following, what should be clear is that (1) Judge Ezra’s injunction is now back in effect; (2) SB4 is thus on hold; and (3) the next question for the Fifth Circuit is whether to issue a “stay pending appeal” of Judge Ezra’s injunction—which would put SB4 back into effect were it to be granted.

As I just noted, I think such a move is very unlikely—again, because Chief Judge Richman has now tipped her hand. To me, the bigger question is whether this panel moves quickly to formalize its denial of Texas’s motion for a stay pending appeal—or whether it folds that denial into a full ruling on Texas’s appeal after the April 3 argument on the merits, i.e., whether Judge Ezra’s preliminary injunction should stand, period.

Let’s assume, for the moment, that the panel acts before April 3 to formally deny Texas’s stay application. The most important point is that such a move would keep SB4 on hold. Texas would then have three choices. (1) It could seek rehearing of that order from the full (“en banc”) Fifth Circuit; (2) it could seek emergency relief from the Supreme Court; or (3) it could sit back and wait for the resolution of its appeal on the merits.

Rehearing en banc in the Fifth Circuit is always something to consider in a context like this. That said, the fact that Texas’s loss would’ve come at the hands of Chief Judge Richman may augur against it here. Texas would need nine of the Fifth Circuit’s 17 active judges to support full court rehearing. And even if Chief Judge Richman is (and this is a remarkable statement) not among the median votes on the full court, she’s close enough to it/them that I think Texas would have trouble getting more than seven votes—both because of who she is and because of the Barrett/Kavanaugh concurrence. It would be close, but it’s not clear to me that there are nine judges who would support rehearing en banc of a denial of a stay pending appeal from this panel, and Texas would likely not want to risk trying for en banc review and not getting it.

The Barrett/Kavanaugh concurrence also may weigh against Texas seeking emergency relief from the Supreme Court. Again, because Chief Justice Roberts was in the majority in Arizona, Texas presumably needs both Justices Kavanaugh and Barrett to win this case—both on a stay pending appeal and on the merits. It’s pretty hard to read both the concurring opinion itself and the optics of its existence as anything other than a sign that that’s by no means a given; if either/both of Justices Kavanaugh and Barrett were sympathetic to Texas on the merits, why write/sign such a wonky procedural opinion to explain why they’re letting SB4 go into effect—or be so clear about the ability of the challengers to the law to come right back to the Court? (Although there are lots of analogies between what’s happened here and in the SB8 case, there was no such separate statement from Kavanaugh and/or Barrett there.)

So it’s entirely possible that, if the Richman/Oldham/Ramirez panel denies Texas’s motion for a stay pending appeal, Texas will choose to wait for the merits argument on April 3 before doing anything else. At that point, things could again get interesting; maybe Chief Judge Richman is more sympathetic to reversing the district court’s injunction on the merits than she is to freezing it through a stay; that’s not remotely foreclosed by last night’s vote to dissolve the administrative stay. But, even if the panel reverses on the merits, last night’s move suggests that a majority might still be wary of allowing SB4 to go into immediate effect, so that it could remain on hold while the federal government and private plaintiffs appeal to the Supreme Court (as they surely would). And if the panel does clear the way for SB4 to go into effect in that scenario, the plaintiffs could also then ask the Supreme Court to keep it on hold.

Obviously, this last part is all speculative. What’s not speculation is that SB4 is now on hold, and is very likely to remain on hold at least through the April 3 oral argument on the merits. And for what it’s worth, I expect it to remain on hold thereafter, as well—either because the merits panel affirms Judge Ezra’s preliminary injunction, or because it stays any reversal thereof. Either way, the Supreme Court is going to eventually have to resolve this case—but it might have the luxury of doing so through an appeal that it gives plenary consideration to this fall, rather than an emergency application that forces it to act next week.

And, whatever else might be said about how we got here, or over the role of the Barrett/Kavanaugh concurrence in the whiplash of the last few days (again, I’ll have a lot more on that in tomorrow’s bonus issue), it seems entirely possible that this is the precise outcome that it intended to provoke."