Well, friends, don’t get too caught up in celebrating the Supreme Court’s surprise decision Tuesday afternoon to lift its stay of the Fifth Circuit Court of Appeals ruling, which allowed Texas’ SB4 law (allowing state law enforcement officers to arrest and detain those suspected of entering the country illegally) to go into effect. Remember this cautionary observation?
Reading between the lines of the concurring and dissenting opinions, none of the justices who authored them are particularly enamored of the way the Fifth Circuit chose to handle this issue procedurally. Currently, the case is set for oral argument before the Fifth Circuit on April 3rd, but whether or not there will be some additional procedural wrangling (e.g., an attempt to prompt a formal stay pending appeal and further review of same) between now and then remains to be seen.
It seems the Fifth Circuit took the hint. Late Tuesday afternoon, the court set oral arguments on the motion for stay pending appeal (initially filed by Texas on March 1st) for Wednesday morning at 10:00 am (Central).
That’s right. The Fifth Circuit will now entertain the parties’ arguments on whether or not a formal stay (of the district court’s ruling finding the law unconstitutional) pending appeal should be entered while the case is sorted out on the merits.
Presumably, if the Fifth Circuit enters such a stay, the Biden administration and immigration groups who brought the suit challenging the law will appeal, and if the court denies the motion for stay, Texas will appeal. And then, the case will proceed back to the Supreme Court to again analyze whether or not the district court ruling should be stayed (allowing the law to take effect) while the case is decided on the merits (for which oral argument currently is set April 3rd.)
Obviously, there are a lot of moving parts to all of this. To nutshell what this latest development means: The Fifth Circuit will hear oral arguments Wednesday morning to determine if it should formally stay the lower court ruling on the law until it hears and decides the case on the merits. We’ll do our best to provide the updates as they become available.
A copy of the Fifth Circuit’s letter to counsel advising of Wednesday’s oral argument setting may be viewed below.
