After a whirlwind of technical litigation developments, Texas's controversial new immigration law is back on hold as of late Tuesday night. How did we get here—and what happens now?
UPDATE: it just went back on hold, by 5th Circuit.
I've read the actual statute and at least it has some due process protections. Removing migrants requires a court order. I'm going to assume it doesn't intend to violate due process but there are specific issues . It isn't clear if it requires an arrest warrant. Do they need probable cause? Will they issue Miranda warnings? Is there a right to counsel? Are they entitled to bail? (I'd think a flight risk is exactly what Texas wants.) Are people normally held in custody for a Class 2 Misdemeanor? If they are incarcerated, where will they be kept? Will families be separated? Will people wrongly arrested have recourse?
How many of the magistrates and judges will be clones of Judge Roy Bean? (Do they mind not having time off for a very long spell? )
It is going to cause Texas taxpayers a fortune. Will they increase the numbers of cops or will the time they spend enforcing eat into dealing with actual crimey-wimey stuff? Will they instituted special courts with newly hired magistrates? Seems to me Texas would actually be far better off supporting Biden's plan to increase federal enforcement and immigration courts.
Will Texans wake up to the consequences and be less enamored of Abbott and their legislators who passed this thing?
I agree completely that this should be a Federal, not state issue. The chaos it would cause would mostly be if cops and courts actually violate due process in their actions.
Thanks very much for this bonus bonus issue. I went to sleep last night wondering what is happening to the rule of law, but I feel better after reading your explanation. I wish you and Karen every success and happiness in your move to DC, but I hope (speaking as a resident of the Pscific time zone) that it will not slow your response to the future (inevitable) hijinks of the Fifth Circuit.
Thx for explanation and “summary”. Easy enough to follow. It had to be difficult. It certainly depicts the difference between a business dealing with thorny issues and the legal system dealing with them.
Bill of attainder? See US v Brown, 381 US 437 (1965) at (f) "A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct." In United States v Lovett, 328 US 303 (1946), the Court in enjoining enforcement of a law barring payment of government salaries to three officers for affiliating with a disfavored political party held that "[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishmnet on them without a judicial trial are bills of attainder..." See also Ex Parte Garland, 4 Wall 333 (1867).
Your quote from the merits panel’s order lifting the administrative stay has some words missing. It was a little confusing until I saw the screenshot of the actual order. You are missing “has concluded” after “A majority of the panel…”. Just FYI. Great article Professor Vladeck.
Susan Linehan's comment are well taken although it does not appear that either the Supremes' or most of the 5th Circuit is the least bit interested in the claim of self -defense.There is a political element to this that may well have affected both Courts---The House and Senate leaderships have announced that they have reached agreement on the Federal Budget . The sticky issue this time was funding for Homeland Security which includes the Border. There is rumor that Biden got the additional resources he needs to manage the border in the deal and if so this moots the need to the continued meddling by the Courts in matters that they are incompetent to address so it is possible for the 5th to stay the case on the merits on grounds that the "victory" claimed by the State will be moot shortly.
The other possibility is that this is simply a power play between the 5th Circuit and the Supremes: As Peter Finley Dunn put it " reversal on appeal is one Court's way of showing its contempt for another.
UPDATE: it just went back on hold, by 5th Circuit.
I've read the actual statute and at least it has some due process protections. Removing migrants requires a court order. I'm going to assume it doesn't intend to violate due process but there are specific issues . It isn't clear if it requires an arrest warrant. Do they need probable cause? Will they issue Miranda warnings? Is there a right to counsel? Are they entitled to bail? (I'd think a flight risk is exactly what Texas wants.) Are people normally held in custody for a Class 2 Misdemeanor? If they are incarcerated, where will they be kept? Will families be separated? Will people wrongly arrested have recourse?
How many of the magistrates and judges will be clones of Judge Roy Bean? (Do they mind not having time off for a very long spell? )
It is going to cause Texas taxpayers a fortune. Will they increase the numbers of cops or will the time they spend enforcing eat into dealing with actual crimey-wimey stuff? Will they instituted special courts with newly hired magistrates? Seems to me Texas would actually be far better off supporting Biden's plan to increase federal enforcement and immigration courts.
Will Texans wake up to the consequences and be less enamored of Abbott and their legislators who passed this thing?
I agree completely that this should be a Federal, not state issue. The chaos it would cause would mostly be if cops and courts actually violate due process in their actions.
I've read that a lot of cops do NOT like the law.
Thank you that detailed article!
The Marx brothers would like to have a word. (It least two of them.)
But, is Texas going to actually stop enforcing SB4?
And, why are you staying in Texas?
Thank you!
Thanks for doing the off cycle play by play here. I was totally confused before, and now I'm just slightly confused.
Do you see this as a sign of a smooth functioning Supreme Court? This looks more like a rogue IT "skunk works" to me.
Thanks very much for this bonus bonus issue. I went to sleep last night wondering what is happening to the rule of law, but I feel better after reading your explanation. I wish you and Karen every success and happiness in your move to DC, but I hope (speaking as a resident of the Pscific time zone) that it will not slow your response to the future (inevitable) hijinks of the Fifth Circuit.
Thx for explanation and “summary”. Easy enough to follow. It had to be difficult. It certainly depicts the difference between a business dealing with thorny issues and the legal system dealing with them.
Bill of attainder? See US v Brown, 381 US 437 (1965) at (f) "A statute which inflicts its deprivation upon named or described persons or groups constitutes a bill of attainder whether its aim is retributive, punishing past acts, or preventive, discouraging future conduct." In United States v Lovett, 328 US 303 (1946), the Court in enjoining enforcement of a law barring payment of government salaries to three officers for affiliating with a disfavored political party held that "[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishmnet on them without a judicial trial are bills of attainder..." See also Ex Parte Garland, 4 Wall 333 (1867).
Your quote from the merits panel’s order lifting the administrative stay has some words missing. It was a little confusing until I saw the screenshot of the actual order. You are missing “has concluded” after “A majority of the panel…”. Just FYI. Great article Professor Vladeck.
Susan Linehan's comment are well taken although it does not appear that either the Supremes' or most of the 5th Circuit is the least bit interested in the claim of self -defense.There is a political element to this that may well have affected both Courts---The House and Senate leaderships have announced that they have reached agreement on the Federal Budget . The sticky issue this time was funding for Homeland Security which includes the Border. There is rumor that Biden got the additional resources he needs to manage the border in the deal and if so this moots the need to the continued meddling by the Courts in matters that they are incompetent to address so it is possible for the 5th to stay the case on the merits on grounds that the "victory" claimed by the State will be moot shortly.
The other possibility is that this is simply a power play between the 5th Circuit and the Supremes: As Peter Finley Dunn put it " reversal on appeal is one Court's way of showing its contempt for another.
Agree with your final paragraph. In fact, it’s the first thing I thought of.