In what has become a rapidly changing legal dispute over a new Texas immigration law allowing the state to arrest and deport migrants in the country illegally, the Fifth Circuit court heard arguments on Wednesday as the three-judge panel appeared skeptical of some — but not necessarily all — parts of the legislation. 

Texas’s Senate Bill 4 is the latest flashpoint between the Biden administration and the state, as the federal government insists it maintains exclusive authority over the entry and removal of citizens and Texas, invoking the Constitution’s invasion clause, says it has a sovereign right to defend itself. 

In a whirlwind of activity as SB 4 has moved through the courts in the past month, the law has been blocked, allowed to take effect, paused, allowed to take effect, and blocked again. The shifting legal landscape has reportedly caused confusion for law enforcement and sparked fear among Latino communities that they will be questioned and detained by police. 

The law was in effect only for a few hours on Tuesday after the Supreme Court declined to block it, signaling that the Fifth Circuit must first weigh in on the merits before the high court takes up the issue. The Fifth Circuit moved quickly by blocking it and scheduling Wednesday’s arguments. 

Texas’s effort is already sparking laws mimicking it — on Tuesday, Iowa’s legislature approved a similar illegal entry bill, and Governor Reynolds said she would sign it, noting that “states have stepped in to secure the border.” 

Wednesday’s arguments were heard by Chief Judge Priscilla Richman, who is an appointee of President George W. Bush; Judge Andrew Oldham, who was appointed by President Trump; and Judge Irma Carrillo Ramirez, who is a President Biden appointee, per NBC News. 

Texas’s solicitor general, Aaron Nielson, went first, maintaining that the law was a part of the state’s right to defend itself as illegal immigration surges. He said SB 4 is modest because it “mirrors rather than conflicts” with federal law and that it’s important because even Mr. Biden has called what’s happening at the southern border a “crisis.” 

“Texas has decided that we are at the epicenter of this crisis, we are on the frontline, and we are going to do something about it,” Mr. Nielson said.

A major topic in Texas’s dispute is a 2012 Supreme Court ruling in Arizona v. United States, in which the court struck down a similar state law, holding that arresting and deporting migrants is the federal government’s responsibility and not that of the states.

Mr. Nielson argued on Wednesday that Texas has “tried to do the very best we can to fall within the scope” of that ruling. 

“In Arizona, there were provisions that did not match with what federal law says,” Mr. Nielson argued. “Here we’ve tried to mirror federal law. And it’s hard to see how a state law that mirrors federal law about a core state police power can nonetheless be preempted in all applications facially.” 

Chief Judge Richman pushed back on the claim that removing migrants is a “core state police power,” and appeared skeptical of how the law would work in practice. 

“This is the first time, it seems to me, that a state has claimed they have the right to remove illegal aliens,” she said while asking for confirmation that it didn’t seem to be “a power that historically has been exercised by states.” 

Mr. Nielson responded that Texas would try to work with the federal government and the law wouldn’t make the state “the Wild West.” 

“I think that it’s certainly true that a state doesn’t generally have the power to admit or exclude,” he said. “But what SB 4 does here is you get the order from the judge, and the person is taken to the port of entry,” where the federal government then has custody. 

The chief judge also asked what would happen if the Border Patrol sent a migrant back into Texas. It wasn’t immediately clear what Texas would do, and Mr. Nielson said it was “uncharted” territory. 

When asked if people would be at risk of deportation if they crossed the border through Arizona and then years later moved to Texas, Mr. Nielson said, “I don’t know the answer.”

The federal government’s lawyer, Daniel Tenny, argued that “this entire scheme” is “exactly what the Supreme Court warned against in Arizona.” 

“The Supreme Court said the federal government has to have control over the immigration system and then went on to say there are ways that states can participate and can help in the federal immigration system,” he said. 

The district court’s initial blocking of SB 4 “preserved the federal system that’s been in effect for 150 years based on repeated invocations of the Supreme Court.” 

“Well his argument is that the executive branch is not enforcing the law and has not for years, decades, at least a decade, and therefore they are no longer occupying the field. What’s your response to that?” Mr. Tenny was asked by the panel.

Congress has “robustly occupied this field,” and “it’s just wrong that the federal government isn’t acting in this area,” Mr. Tenny replied. It’s critical the federal government handle these matters because it is an “international exercise” requiring collaboration with other countries, he added. 

Judge Oldham appeared more skeptical of parts of the federal government’s position. Notably, he dissented from the court’s blocking of SB 4 Tuesday night, noting that a preliminary injunction is “an extraordinary remedy that alters the status quo.” 

In his rebuttal, Mr. Nielson argued that at least some applications of SB 4 are certainly lawful and emphasized the federal government would need to prove that all aspects were unlawful for the district court’s injunction to stay in place. The panel did not immediately issue a ruling.