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Texas' immigration law still under consideration after SCOTUS stay extended

Justice Alito extends the stay on Texas' SB 4, again
Justice Alito extends the stay on Texas' SB 4, again 02:30

TEXAS — For the second time this month, U.S. Supreme Court Justice Samuel Alito extended his stay on the new controversial Texas law that would make it a state crime for a migrant to cross into Texas illegally.

Justice Alito's order was released by the nation's highest court at 4:05 p.m. CST Monday, five minutes after his self-imposed deadline to issue an order.     

The bottom line is the state's law, also known as SB 4, won't take effect anytime soon.

Alito's new order Monday did not include a deadline so the stay will remain in effect indefinitely.

"The Supreme Court has temporarily halted enforcement of SB 4, but it didn't halt Texas' pre-existing authority to arrest for criminal trespass and other violations of the law," Gov. Abbott said in a statement to CBS News Texas. "Until President Biden steps up and does his job to secure the border, Texas will continue utilizing every tool and strategy to respond to this Biden-made border crisis. This case remains on schedule to be argued at the 5th Circuit on April 3rd."

Governor Greg Abbott signed the legislation on Dec. 18, and the next day, a number of organizations filed a lawsuit against the state to challenge the law.

Those organizations claimed the state's new law was illegal because the Supreme Court had previously ruled that only the federal government has jurisdiction over immigration law.

The state law would allow local police to make arrests on state charges when someone entered the country between the ports of entry.

Abbott has said the federal government wasn't doing anything to keep the record number of migrants from crossing the southern border, and as a result, Texas was left with no other choice but to enact the legislation to act as a deterrent.

A federal judge ruled against Texas, which appealed to the Fifth Circuit Court of U.S. Appeals in New Orleans.

That court reversed the district court's decision and sided with Texas.

The Biden administration appealed to the U.S. Supreme Court saying Texas was improperly trying to develop its own immigration policy.               

An appellate attorney in Dallas, David Coale, who's not tied to this case, told CBS News Texas Monday afternoon that he believes there's disagreement among the justices on whether SB 4 is constitutional. 

"What we can take away from that is that it's proving to be a difficult issue," Coale said. "The argument has been made that this whole law is controlled by existing Supreme Court precedent, a case called Arizona versus United States, about 10 years old. Clearly, if the Supreme Court today saw it that way, it wouldn't need two extensions of time to deal with the stay application. It would just cite that case and move on. There's clearly some difference of opinion about how Arizona applies to the Texas law."

While the Supreme Court considers the state law, the Fifth Circuit Court of Appeals in New Orleans will hold a hearing on this case on April 3.

That court will then consider whether the state law is constitutional.

"SB 4 would have served as the strongest border security law in the country, but now that tool has been robbed from our toolbox to America's further detriment," Texas Speaker Dade Phelan said after the ruling on Monday. "The state looks forward to seeing this historic measure ultimately upheld and go into effect. Despite President Biden's complete disregard for the safety and security of our communities, Texas will never give up the fight to defend our land and secure our borders."

The Supreme Court could review the Appeals Court's ruling and let it stand or decide to issue its own opinion.

For now, though, the state's law will not take effect.

Watch Eye On Politics at 7:30 Sunday morning on CBS News Texas ON AIR and streaming

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