Texas Immigration Spat Puts Spotlight on Fifth Circuit Stays

The US Court of Appeals for the Fifth Circuit has turned to administrative stays to let a handful of Texas laws go into effect while they’re still being litigated, a move that some legal experts say could lead to future chaos if those measures are later overturned.

The New Orleans-based appeals court faced criticism for such a maneuver in its handling of a Texas law that would allow local and state officials to arrest suspected undocumented migrants.

The US Supreme Court on Tuesday let the law go into effect, but Justice Amy Coney Barrett in a concurrence said the Fifth Circuit should’ve ruled on the motion for a stay pending appeal rather than leaning on an administrative stay, typically used. The circuit acted within hours, leaving in place an injunction that blocked the statute and scheduling a hearing for Wednesday morning on whether it should pause the lower court ruling.

Fifth Circuit watchers say they’ve seen an increase in the use of administrative stays at the court, which they partly attribute to a spike in high-profile cases moving through the circuit.

Raffi Melkonian, a partner at the Houston law firm of Wright Close & Barger who tracks Fifth Circuit developments, said that allowing law enforcement to start making arrests under this immigration measure while it could potentially be declared unconstitutional “seems like a recipe for chaos.”

“I think in that scenario, it does make sense to sort of let everyone sort it out before enforcing that kind of law,” Melkonian said.

The whiplashing rulings are placing communities along the border in limbo. That includes El Paso, where cash-strapped officials worry about coming up with tens of millions of dollars to adjudicate migrants arrested under the new law, SB 4.

If the measure goes into effect permanently, the county expects 8,000 arrests per year on state charges of unlawful entry. The county alone would foot the bill for public defenders to represent migrants in criminal court proceedings. Likewise, there might be a need to beef up the prosecutor’s office.

Detaining migrants at the county jail would cost $24 million per year and strain a facility already at capacity, the county says. Opening a new jail is being considered, but at an estimated price of $162 million, taxpayers would bear the cost.

“We really think this is going to cause a huge burden on all offices on all levels of the criminal justice system,” said Bernardo Cruz, an assistant county attorney in El Paso. The county is among the plaintiffs challenging the law in the case now before the Fifth Circuit.

“Our position is SB 4 is unconstitutional and shouldn’t be applied,” said Cruz, the lead attorney in the county’s case.

‘Troubling Habit’

Supreme Court Justice Sonia Sotomayor, who dissented from letting the latest Texas law go into effect, said in a footnote that the circuit “recently has developed a troubling habit of leaving ‘administrative’ stays in place for weeks if not months.”

Before this week’s back-and-forth on the immigration law, the circuit has allowed Texas to move ahead with private enforcement of violations of a six-week abortion ban and maintain a buoy barrier on the border with Mexico over the opposition of the US federal government.

The circuit last year also let a Texas law go into effect that required book vendors to rate all titles they have sold to public schools and still actively used as “sexually explicit,” “sexually relevant,” or “no rating.” But the court in January ruled that the law is likely unconstitutional.

The circuit has motion panels that initially determine whether a stay should be placed on a trial court ruling, before passing along the matter to the merits panel which can consider a fully briefed motion for a stay pending appeal, as well as the appeal itself.

In her concurring opinion on Tuesday, Barrett — joined by Justice Brett Kavanaugh — said that failure of the circuit to act on the full stay pending appeal “puts this case in a very unusual procedural posture.”

She said that at this stage, the circuit “apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than those of erroneously lifting the injunction.”

Barrett said that it wouldn’t be appropriate for the court to review an administrative stay and that before the Supreme Court intervenes, “the Fifth Circuit should be the first mover.”

It’s too soon to tell, if Barrett’s concurrence will affect the Fifth Circuit’s future use of administrative stays.

“There is no question that a fair reading of Justice Barrett’s concurrence includes a bit of a warning to the Fifth Circuit. Not just in this case where the message was clearly received, but going forward,” said Stephen Vladeck, a law professor at the University of Texas at Austin.

However, Vladeck noted that this panel includes Chief Judge Priscilla Richman, who oversees administrative duties for the Fifth Circuit and is considered one of the more moderate voices on the conservative-controlled court.

“I think that the question is going to be whether a panel with two or three Trump appointees likewise starts to sort of rein in this kind of use of administrative stays,” Vladeck said.

Status Quo

Administrative stays are typically issued to maintain the “status quo” in a case. But Fifth Circuit watchers say that some of the court’s conservative members have begun to adopt a different definition of what the status quo is, which cuts in favor of allowing Texas state measures to go into effect.

David Coale, a partner at Lynn Pinker Hurst & Schwegmann who regularly writes about the Fifth Circuit, said that previously, keeping the status quo was typically taken to mean that a significant law shouldn’t be put into effect unless the court is reasonably sure that it’s correct about its legality.

“That is no longer the case. People are more receptive to this argument that, ‘no no, the status quo is the duly enacted law,’” Coale said.

Judge Andrew Oldham, one of the three Fifth Circuit judges who heard arguments Wednesday on issuing a stay in the immigration case, referenced the status quo as he dissented from the court’s ruling late Tuesday that left the trial court’s injunction in place.

Barrett also raised the question of what the status quo is in her Tuesday concurrence, saying that it’s “not self-evident in this case. “Is it the day before Texas enacted S. B. 4?” she wrote. “The day before the lawsuit was filed? The day Texas’s appeal and stay motion was docketed in the Fifth Circuit?”

Vladeck said that it can be difficult to generalize about what the status quo is for all cases. “But to me, at least in the context of pre-enforcement challenges, it’s really hard to see the argument that the status quo is the law being in effect,” he said.

—With assistance Ryan Autullo.