Texas has continued fighting for the right to enforce a border security law from 2023, going before the Fifth Circuit Court of Appeals for oral arguments on Thursday. The State is looking to have the lawsuit dismissed for a lack of standing.
The law in question—Senate Bill 4—created a new state crime for entering Texas illegally and authorized state law enforcement to arrest and prosecute those who cross the border illegally anywhere in Texas.
This measure was intended to allow for increased state control over border security, particularly when the federal government has been consistently unreliable for decades.
Gov. Greg Abbott signed SB 4 into law on December 18, 2023.
The Lawsuit
The following day, two nonprofit organizations—Las Americas Immigrant Advocacy Center and American Gateways—and El Paso County filed a federal lawsuit in the Western District of Texas, seeking to block the state from enforcing SB 4 before it was set to take effect on March 5, 2024.
They claimed the law is unconstitutional, preempted by federal law, and harmful to their operations and communities.
In January 2024, the Biden administration’s Department of Justice (DOJ) also filed suit, claiming SB 4 is preempted under the Supremacy Clause because Congress has occupied the field of regulating immigration enforcement—meaning a state cannot create its own parallel unlawful‑entry and removal scheme.
The two lawsuits were then consolidated.
On February 29, 2024, District Judge David Ezra granted a preliminary injunction, holding that SB 4 is likely preempted and blocking Texas from enforcing it.
The State immediately appealed the decision to the U.S. Fifth Circuit Court of Appeals in New Orleans. The court issued an administrative stay of the injunction on March 2, 2024, temporarily allowing SB 4 to take effect.
Plaintiffs then sought emergency relief in the U.S. Supreme Court. Justice Alito temporarily halted the Fifth Circuit’s stay while the Court considered the application—just one day before the law was set to take effect.
On March 19, 2024, the Supreme Court declined to vacate the Fifth Circuit’s stay.
However, shortly afterward the Fifth Circuit would dissolve its own stay, letting the district court injunction go back into effect—blocking SB 4 during the appeal.
After President Donald Trump took office in 2025, the DOJ reversed course and notified the district court that the U.S. would voluntarily dismiss its own lawsuit.
The DOJ’s dismissal removed the federal government as a plaintiff but did not terminate the consolidated lawsuit, as El Paso County and the nonprofit plaintiffs remain, continuing to pursue the preemption and Supremacy Clause claims.
This created a dispute over whether the remaining plaintiffs have standing to pursue those claims. The Fifth Circuit ultimately voted to rehear the case en banc—meaning it would be heard before the full court.
Oral Arguments
On Thursday morning, the Fifth Circuit heard oral arguments focused primarily on standing, rather than the merits of the case.
Plaintiffs claim they have standing to sue based on the precedent set by the 1982 Supreme Court decision in Havens Realty Corp. v. Coleman.
Under Havens, an organization has standing to sue when the defendant’s unlawful conduct directly interferes with the organization’s core activities, even if the harm is not a classic out‑of‑pocket loss and even if the organization is not itself the direct statutory target.
However, State defendants claim the Havens rule is not applicable to this case, citing the more recent 2024 Supreme Court decision in FDA v. Alliance for Hippocratic Medicine. This was another case that attempted to use Havens’ precedent to justify an organization’s standing.
The Court’s opinion in Alliance stated that “Havens was an unusual case, and this Court has been careful not to extend the Havens holding beyond its context.”
Throughout the Thursday hearing, the majority of judges seemed to signal their agreement with this argument. Given the current conservative makeup of the Fifth Circuit, the court could dismiss the case, finding that the plaintiffs lack standing on this basis.
The Fifth Circuit has yet to rule, meaning the existing district court injunction remains in place. Regardless of the decision, the case is expected to be appealed to the U.S. Supreme Court.
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