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Alito extends order barring Texas from detaining migrants under SB4 immigration law for now

Supreme Court Justice Samuel Alito on Monday extended an order barring Texas officials from detaining and jailing migrants suspected of crossing the U.S. southern border without authorization under a new state immigration law known as SB4 that the Biden administration has called unconstitutional.

Minutes after a self-imposed deadline passed, Alito issued an order continuing to pause enforcement of the controversial Texas law, one of Gov. Greg Abbott’s signature immigration policies, on an administrative basis.

The U.S. Court of Appeals for the 5th Circuit is considering the measure’s legality, and the Justice Department asked the Supreme Court to put the law on hold as the court challenge plays out. The full court has not yet acted on that request.

Passed by the Texas legislature last year, SB4 criminalizes unauthorized migration at the state level, making the act of entering the U.S. outside of a port of entry — already a federal offense — into a state crime. It also creates a felony charge for illegal reentry at the state level.

At the request of the Biden administration, a federal judge last month blocked SB4, finding that the state measure is at odds with federal immigration laws. That ruling was then suspended by the 5th Circuit until Alito paused the appeals court’s order on administrative grounds. Alito’s administrative stay maintains the status quo while the court considers the Justice Department’s request for emergency relief.

SB4 empowers Texas law enforcement officials, at the state and local levels, to stop, jail and prosecute migrants on illegal entry and reentry charges. It also allows Texas judges to order migrants to return to Mexico as an alternative to continuing their prosecution, effectively creating a de facto state deportation system.

The Justice Department has said SB4 conflicts with federal law and the Constitution, noting that immigration enforcement, including arrests and deportations, have long been a federal responsibility. It has also argued the measure harms relations with the Mexican government, which has denounced SB4 as “anti-immigrant” and vowed to reject migrants returned by the state of Texas.

Abbott, who has positioned himself as the leading state critic of President Biden’s border policies, has portrayed SB4 as a necessary measure to discourage migrants from crossing the Rio Grande, arguing the federal government has not done enough to deter illegal immigration.

Over the past three years, Texas has mounted the most aggressive state effort yet to challenge the federal government’s power over immigration policy, busing tens of thousands of migrants to major, Democratic-led cities, assembling razor wire and buoys along stretches of the border to deter migrant crossings and filing multiple lawsuits against federal immigration programs. 

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