AUSTIN, Texas — The Texas Solicitor General told a federal appeals court today that the state may have gone too far in crafting its immigration enforcement law. 

What You Need To Know

  • An attorney defending Texas’ plans to arrest migrants who enter the U.S. illegally told a panel of federal judges Wednesday that it’s possible the law “went too far” but that will be up to the court to decide

  • The comment was made to a 5th U.S. Circuit Court of Appeals panel that has already previously halted Republican Gov. Greg Abbott’s strict immigration measure

  • The panel did not indicate whether they believed Texas has overstepped, but later questioned Nielson about the specifics and application of the law

  • Texas was allowed to enforce the law for only a few confusing hours last month before it was put on hold by the same three-judge panel that heard arguments Wednesday. No arrests were announced during that brief window

Despite that concession, Texas argued it’s still within its legal rights to enact the law known as SB4, which allows state and local police to arrest migrants suspected of illegally crossing the border.  

Today’s hearing before the 5th Circuit Court of Appeals is the latest in the back and forth with the Biden administration over the measure.  

“Texas has looked at the Supreme Court precedent, and the laws that congress has enacted and has tried to develop a law that goes up to the edge, but no further,” said Aaron Nielson, Texas Solicitor General. 

Last month—the same panel of judges kept the law on hold while the legal battle plays out. They cited part of SB4 that allows local judges to deport migrants as an interference with the federal government’s authority to enforce immigration laws.  

Nielsen argued Wednesday that Texas would not deport migrants. 

“Texas doesn’t deport anybody. Texas takes them to the port of entry, and the United States then decides what to do,” he said. 

The attorney for the Biden administration questioned that notion given a part of SB4 requires a person be returned to the country from which they entered the U.S. 

“I’d like to start with counsels effort to rewrite Texas SB4 from the podium,” said DOJ attorney Daniel Tenny. “You’re calling it a return order, but it doesn’t sound like a return order because it’s no longer requiring them to return.”  

The law’s supporters say it mirrors federal immigration law, which they claim is not being enforced by federal authorities. 

“The thing that it would provide would be the opportunity if the federal government is unable or unwilling to respond it would give the state the ability to file a charge instead of just having to release somebody who just entered the state unlawfully,” said Skylor Hearn, executive director of the Sheriffs’ Association of Texas. 

Opponents say the state is overstepping constitutional boundaries and fear the law will cause illegal racial profiling. 

“The darker the skin, the greater suspicion of illegality, the thicker the accent, the greater the suspicion,” said Edgar Saldivar with the Texas ACLU. 

Whichever way the federal appeals court rules—it’s likely the case will ultimately be decided by the U.S. Supreme Court.