By Howard Fischer
Capitol Media Services
PHOENIX --A voter approved measure to allow state and local police to arrest some people who entered the country illegally could be a step closer to being enforced.
In a divided decision, the Fifth Circuit Court of Appeals on Friday tossed out a challenge to a Texas law with virtually identical language. The majority concluded that the groups trying to get SB 4 declared unconstitutional lacked the legal standing to sue.
What makes that important is that Proposition 314, approved by Arizona voters in 2024 by a margin of more than 3-2, has a clause making its enforcement here contingent on whether SB 4 is found to be legal.
The new ruling in Texas is not the last word. It could mean, however, that the only thing holding up enforcement of the Arizona law is a final ruling by the U.S. Supreme Court.
But there's more than what's in Proposition 314 that's at stake.
The Texas Republicans who pushed for approval of SB 4 anticipated the issue of the right of states to enforce immigration laws winding up before the nation's high court. And they said that it could convince the Supreme Court to revisit its landmark 2012 ruling -- in front of a less conservative court -- which overturned Arizona's SB 1070. That 2010 law contained multiple provisions dealing with immigration.
In that 2012 ruling, the justices allowed some provisions to take effect, such as requiring police, when they have stopped someone for any reason, to check on that person's immigration status if there is a reasonable suspicion they are undocumented. But they voided other sections, including one that would have allowed police to make warrantless arrests if they believe a person is violating federal immigration law.
Justice Anthony Kennedy, writing the majority decision, said that conflicts with federal law because it would allow the state to decide, without input from the federal government, whether an arrest was warranted.
Proposition 314 -- the Arizona law whose enforcement is contingent on the fate of Texas SB 4 -- contains several sections, including one that increases the penalty for selling fentanyl that results in death and another making it a state-level crime to use fake documents to apply for public benefits or employment.
The key provision, however, makes it a crime for "an alien'' to enter or attempt to enter Arizona directly from Mexico at any location other than a port of entry. Violations are a Class 1 misdemeanor, which generally means six months in jail.
But proponents acknowledged the real purpose of that language was to allow such people to be deported.
It contains language that allows judges, rather than incarcerating individuals, to instead order them to "return to the foreign nation from which the person entered'' or to the "nation of origin.'' And judges even would have the power to order a state or local law enforcement agency to transport to a port of entry.'' After Texas enacted SB 4 in 2023 it was challenged by the Biden administration.
A federal district court judge enjoined its enforcement, calling it "patently unconstitutional'' because it conflicted with federal immigration enforcement and foreign relations. That decision was upheld by a three-judge panel of the Court of Appeals.
In the interim, though, the Department of Justice, now under the Trump administration, dropped its appeal. And that left only El Paso County and two immigrant rights groups as the plaintiffs.
That proved crucial, with the full appellate court saying that they lacked standing to sue in the first place.
Texas Attorney General Ken Paxton cheered the ruling.
"Texas's right to arrest illegals, protect our citizens, and enforce immigration law is fundamental,'' he said in a prepared statement. "This is a major victory for public safety and law and order.''
But Cody Wofsy, deputy director of the ACLU's Immigrants' Rights Project, said the new ruling is "a procedural decision,'' not addressing the legal merits of the law.
"It does not change what every court to examine similar laws has found: SB 4 is unconstitutional,'' he said in a statement. "This fight is far from over.''
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