Texas can now arrest people suspected of crossing the border illegally, after a divided federal appeals court revived a state law that had been blocked for more than two years. The 5th U.S. Circuit Court of Appeals voted 10 to 7 to overturn an injunction against Senate Bill 4, the state statute that makes unauthorized entry from a foreign country a crime under Texas law.
The ruling hands Governor Greg Abbott and Attorney General Ken Paxton a long-sought win in their fight to let state and local officers enforce immigration law, a power the federal government has historically claimed as its own. It also sets the stage for a near-certain showdown at the U.S. Supreme Court, where the boundaries between state and federal authority over immigration will face their sharpest test in years.
Abbott signed SB 4 into law as part of Texas's broader border enforcement push. The statute creates a state crime for illegally entering or re-entering Texas from a foreign country. It authorizes state and local law enforcement officers to arrest people suspected of crossing from Mexico between official ports of entry, as the Associated Press reported.
The penalties are steep. A first offense carries misdemeanor charges with up to one year in prison. Repeat offenses or aggravated circumstances can bring felony penalties of up to 20 years. The law also allows state judges to order violators to leave the United States, a power that until now has belonged exclusively to federal immigration courts.
That last provision is the legal flashpoint. Federal law has governed who enters and who gets removed from the country since at least the late 1800s. Texas is now asserting that it can operate a parallel system at the state level.
SB 4 never had a smooth ride. Almost immediately after Abbott signed it, the Biden Justice Department warned Texas it would sue to block enforcement. Brian Boynton, a senior DOJ official, put the threat in writing.
"SB 4 is preempted and violates the United States Constitution. Accordingly, the United States intends to file suit to enjoin the enforcement of SB 4 unless Texas agrees to refrain from enforcing the law."
The federal government followed through. A lower court issued an injunction barring Texas from enforcing the statute. A three-judge panel of the 5th Circuit then upheld that injunction in a 2 to 1 decision, siding with the argument that immigration enforcement is an exclusively federal function under the Constitution and Supreme Court precedent.
Texas did not accept that result. Paxton pushed for the full 5th Circuit to reconsider the case, a procedural move called rehearing en banc. That request succeeded, and the full court took up the question of whether SB 4 could stand. The resulting 10 to 7 vote reversed the earlier panel and dissolved the injunction that had kept the law on ice.
Paxton framed the outcome in blunt terms.
"Texas's right to arrest illegals, protect our citizens, and enforce immigration law is fundamental."
This is not the first time SB 4 appeared ready to take effect. In an earlier round of litigation, the U.S. Supreme Court temporarily allowed the law to go into force. But the 5th Circuit moved quickly, blocking SB 4 again less than 12 hours later. During that narrow window, no arrests were made under the statute.
That earlier episode revealed how fast the legal machinery can move when states and the federal government clash over immigration. It also showed that Texas law enforcement was not prepared to begin arrests on a few hours' notice, raising practical questions about how quickly the state can now stand up enforcement operations.
The 5th Circuit's recent willingness to uphold state detention authority in Texas suggests the appellate court is increasingly sympathetic to red-state arguments about border enforcement powers.
The core legal dispute is straightforward in concept but enormous in consequence. The federal government argues that immigration law is a field "occupied" by Congress and the executive branch. Under the Supremacy Clause, states cannot pass laws that conflict with or intrude upon that federal domain. The legal term is preemption, and it has been the government's primary weapon against SB 4 from the start.
Boynton's letter to Texas spelled out the theory directly: "S.B. 4 therefore intrudes into a field that is occupied by the federal government and is pre-empted."
Texas counters that the state has an inherent right to defend itself, particularly when the federal government fails to secure the border. During oral arguments at the 5th Circuit, Texas Solicitor General Aaron Nielson made the case plainly.
"Texas has a right to defend itself."
The seven dissenting judges on the 5th Circuit were not persuaded. Their position aligns with the view expressed by Justice Sonia Sotomayor, who wrote in an earlier stage of the case that the decision "upends the federal-state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens."
That century-old framework is now fractured at the appellate level. The 10 to 7 split within the 5th Circuit virtually guarantees further review.
With the injunction dissolved, Texas technically has authority to begin enforcing SB 4 unless a higher court intervenes. Opponents of the law are expected to seek emergency relief, potentially from the Supreme Court, to block enforcement while the legal fight continues.
The Supreme Court has already shown interest in the case. Its earlier order allowing SB 4 to take effect briefly signaled that at least some justices are open to hearing the merits. A full grant of certiorari, meaning the Court agrees to hear the case on the merits, would put the question of state immigration enforcement powers squarely before the nine justices.
Several practical questions remain unanswered. Authorities have not publicly confirmed how Texas plans to train officers, process arrests, or coordinate with federal immigration agencies. The logistics of state judges ordering people to leave the country, a function that has always been handled by federal immigration judges, present uncharted procedural territory.
The ruling also arrives at a moment when appellate courts have shown growing openness to hardline detention and enforcement policies, a trend that conservative legal observers view as a correction after years of permissive judicial approaches to immigration.
SB 4 does not exist in a vacuum. Texas has spent billions on Operation Lone Star, deploying National Guard troops and state troopers to the border. Abbott has publicly clashed with the federal government over razor wire barriers, floating buoys in the Rio Grande, and the state's right to take independent action at the border.
The state has also pursued aggressive criminal enforcement on other fronts. A series of terrorism convictions tied to an attack on a Texas ICE facility underscored the state's willingness to pursue maximum charges in cases touching immigration infrastructure.
For Abbott and Paxton, SB 4 represents the legal backbone of that broader strategy. Without it, the state's border operations rely on trespassing charges and other workarounds that do not directly address illegal entry. With it, Texas claims the power to treat unauthorized border crossing as a state criminal offense, complete with state prosecution and state-ordered removal.
The tension between state and federal enforcement authority has also surfaced in other Texas legal battles. A recent Supreme Court decision letting stand a 5th Circuit ruling on qualified immunity for Laredo officials highlighted how arrest powers and government accountability intersect in politically charged cases along the border.
The margin matters. A one-vote swing would have kept SB 4 blocked. The seven dissenters represent a substantial bloc of judges who believe the majority got the constitutional question wrong. That kind of sharp division within a circuit court is exactly what draws Supreme Court attention.
If the justices take the case, the ruling could redefine the boundary between state and federal power over immigration for a generation. A decision upholding SB 4 would open the door for other states to pass similar laws. A reversal would reinforce the federal monopoly on immigration enforcement and close the window Texas forced open.
Either way, the status quo is gone. For the first time in modern American law, state police in Texas have appellate authority to arrest people on suspicion of entering the country illegally. Whether that authority survives its next legal challenge will determine whether this ruling marks a turning point or a temporary detour.
When a state decides the federal government will not secure the border, and a federal court says the state can try, the question stops being about one law in one state. It becomes a question about who actually controls the border, and whether the answer has changed.
