Fifth Circuit Clears Path for Texas Immigration Law, Upholding State Sovereignty
A divided Fifth Circuit has lifted a two-year judicial blockade, allowing Texas to enforce its state immigration law and arrest suspected illegal border crossers — a landmark decision for state sovereignty.
After more than two years of legal limbo, Texas can now enforce its state immigration law. The Fifth Circuit's decision on May 29, 2026, removes the final judicial obstacle that had prevented state and local officers from arresting suspected illegal border crossers. State magistrates can now order removals, handing Texas enforcement tools it has argued it needs for years.
The ruling marks a pivotal moment for states that have watched federal border enforcement falter. Texas officials have made clear that communities require the power to protect themselves when federal authorities fail to secure the nation's borders.
Governor Greg Abbott marked the ruling on X: "We will keep fighting in the courts, working with President Trump, and doing everything necessary to secure our border and protect Texans."
Senate Bill 4, which Abbott signed in December 2023, criminalizes illegal border crossings at the state level. The law authorizes state police to arrest suspected violators and requires magistrates to order removals upon conviction. Texas Attorney General Ken Paxton called the decision "a major victory for public safety and law and order."
The road to this ruling has involved multiple reversals. The Biden administration's Justice Department filed the initial legal challenge, though the Trump DOJ abandoned that case in March 2025. On April 24, 2026, the full Fifth Circuit voted 10-7 to vacate a preliminary injunction on standing grounds, deliberately avoiding the question of SB 4's constitutionality. District Judge David Ezra then issued a new injunction on May 14, blocking four provisions. The Fifth Circuit panel granted Texas' appeal two weeks later.
Judge James Ho's concurring opinion in the en banc ruling introduced a novel constitutional argument. He maintained that SB 4 falls within Texas's "war power" under Article I, Section 10 of the Constitution. "If our adversaries are going to weaponize mass migration to harm America as well as other countries, our elected officials are entitled to respond accordingly," Ho wrote.
Texas has already constructed an independent border enforcement infrastructure that operates largely without federal direction. Operation Lone Star has apprehended more than 500,000 migrants and made 54,000 criminal arrests at a cost of $11 billion. More than 200 Texas law enforcement agencies have entered into 287(g) agreements with ICE, representing roughly one-fifth of all such agreements nationwide.
U.S. Circuit Judge Priscilla Richman dissented from the en banc ruling. She argued that "Supreme Court precedent spanning nearly 150 years suggests that the power to control the entry and removal of aliens is 'vested solely in the federal government, rather than the states.'" The Fifth Circuit majority sidestepped this constitutional question, rejecting the challenge on standing grounds instead.
Judge Ezra echoed these concerns in his May 14 injunction order. "It is implausible to imagine each of the fifty United States having their own state immigration policy superseding the powers inherent in the United States as a Nation," he wrote. The ACLU, ACLU of Texas and Texas Civil Rights Project issued a joint statement warning SB 4 would "devastate our communities and families by turning our state's legal system into an unconstitutional weapon."
The law's implications reach far beyond Texas borders. Several states, including Iowa, Kansas, Louisiana, Mississippi, West Virginia and Oklahoma, have enacted or attempted similar legislation. The litigation could ultimately reach the U.S. Supreme Court, where the conservative majority might revisit Arizona v. United States, the 2012 decision that struck down comparable Arizona provisions.
Whether SB 4 survives constitutional scrutiny remains an open question. The Fifth Circuit's ruling, however, ensures Texas gets to enforce its law while that fight plays out. The decision establishes that Texans, not federal bureaucrats, will decide who enters their territory — a principle that could reshape the balance of power between state and federal governments across the nation.