Justice Alito Extends Stay in Texas SB4 Case Until Monday

Justice Alito issued a pair of orders today extending an earlier stay of a Fifth Circuit ruling in the Texas SB4 case until Monday. The orders give the high Court a few more days to consider the government's application to vacate the Fifth Circuit's move, which allowed SB4 to go into effect. The upshot is that SB4 is not now in effect, and the Court will likely rule on Monday whether it can go into effect pending appeal.

SB4 would impose state criminal penalties on noncitizens who unlawfully enter or reenter Texas from Mexico. It would also require Texas courts to remove those noncitizens to Mexico without Mexico's consent and without regard to federal law.

It's plainly unconstitutional under Arizona v. United States. But Texas surely knows that, and is angling for a change in the law.

The district court issued a preliminary injunction preventing enforcement of SB4. Texas appealed and moved for a stay pending appeal and an immediate administrative stay. The Fifth Circuit granted an "administrative stay" (which would allow SB4 to go into) but stayed the effect of that stay for seven days (which meant that SB4 didn't go into effect for seven days). With that seven-day clock ticking, Justice Alito, as circuit justice, issued an administrative stay (which meant that SB4 didn't go into effect) until March 13, and today extended it until next Monday, March 18.

The case is really two cases at the Court; here's the docket for one, here's for the other.