Take the Fifth

Designated for publication

• United States v. State of Texas, 24-50149, appeal from W.D. Tex.
  • Smith, J. (joined by Elrod, Jones, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson) (oral argument); Ho, J., concurring; Oldham, J., concurring (joined by Elrod, Jones, Willett, Ho, Duncan, Engelhardt); Richman, J., dissenting (joined by Stewart, Southwick, Higginson, Ramirez, and joined by Graves and Douglas as to part II on standing); Graves, J., dissenting (joined by Stewart, Richman, Higginson, Douglas, Ramirez); Higginson, J., dissenting (joined by Stewart, Richman, Southwick, Douglas, Ramirez); immigration, preliminary injunction, standing, preemption, political question, en banc
  • After granting en banc rehearing of July 3, 2025, panel opinion (Richman, Oldham, Ramirez; Oldham dissenting) that, in 185 pages of panel and dissenting opinions had dismissed as moot, in part, an appeal from a grant of preliminary injunction against Texas’s S.B. 4, which prohibits noncitizens from illegally entering or reentering the state, and affirmed a preliminary injunction against S.B. 4 as sought by other plaintiffs, in an additional 159 pages of majority, concurring, and dissenting opinions the en banc court vacated the preliminary injunction on standing grounds alone, without reaching the merits of the preemption claim.
  • Texas enacted S.B. 4 in 2023 in response to what it characterized as an unprecedented border crisis, with more than 6 million illegal crossings from more than 100 countries during 2021–2023. S.B. 4 created new state criminal offenses for illegal entry and reentry (Tex. Penal Code §§ 51.02–51.03) and empowered state judges to issue return orders directing aliens to leave the country (Tex. Code Crim. Proc. art. 5B.002). Before S.B. 4 took effect, the United States, two nonprofit immigrant-advocacy organizations (Las Americas Immigrant Advocacy Center and American Gateways), and El Paso County sued, seeking a declaration that S.B. 4 is preempted by the Immigration and Nationality Act and a pre-enforcement facial injunction. The district court granted a preliminary injunction, which a divided panel affirmed (except as to the U.S., which had withdrawn from the litigation after a change in presidential administration in January 2025).
  • At issue in the en banc rehearing was (1) whether the nonprofit plaintiffs and El Paso County have Article III standing to challenge S.B. 4, particularly in light of FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), and Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982); (2) whether S.B. 4 is preempted by federal immigration law under Arizona v. United States, 567 U.S. 387 (2012); and (3) whether the State War Clause (U.S. Const. art. I, § 10, cl. 3) authorizes Texas’s actions as a response to an “invasion.”
  • The majority held that under Alliance for Hippocratic Medicine and the Supreme Court’s recent decision in Bost v. Illinois State Board of Elections, 146 S. Ct. 513 (2026), the plaintiffs had not suffered a cognizable Article III injury. The court emphasized that S.B. 4 is enforceable only against illegally present aliens, not against advocacy organizations or counties, and that “plaintiffs cannot ‘manufacture standing by voluntarily’ incurring costs.” The nonprofit plaintiffs’ claims that S.B. 4 would “frustrate their missions” and force them to “divert resources” were rejected because Alliance repudiated the proposition that “standing exists when an organization diverts its resources in response to a defendant’s actions.” The court wrote: “A legal-services organization cannot have Article III standing merely because a new law or regulation requires it to understand the legal change, to adjust resources in response, or to increase the degree or scope of legal representation for its current or prospective clients who may be adversely affected.”
  • The majority distinguished Havens Realty on the ground that in Havens, “the defendant told falsehoods to the plaintiff[, which] thus suffered a real, concrete and particularized injury,” whereas “S.B. 4 says nothing about Las Americas or any of the services it wants to provide.” El Paso County’s standing theories—based on eroded “public trust” and projected costs—were likewise rejected as speculative in a pre-enforcement posture: “‘eroding the public trust’ is a non-cognizable reputational harm without a ‘close historical or common law analogue.'” The court concluded: “Federal courts have a solemn responsibility to apply neutral principles, such as standing, to the cases that come before them and must resist the temptation to confer Article III standing any time an advocacy group or political subdivision challenges a law it passionately dislikes.”
  • Judge Ho concurred in vacating the preliminary injunction on standing grounds and separately wrote to defend Texas’s invocation of the State War Clause (Art. I, § 10, cl. 3). He argued at length that nations—including Russia, Nicaragua, and Mexico—have “weaponized migration” against the United States, and that the Executive, not the judiciary, determines the existence of an “invasion.” Quoting Clausewitz, he wrote: “War is the continuation of politics by other means. . . . The judiciary decides matters of law, not war. So if our constitutional separation of powers means anything, it means that the judicial branch must defer to the executive when it comes to the exercise of the war power.” He dismissed the dissenters’ argument that federal statutes trump the State War Clause, asserting that “federal statutes ordinarily must give way to federal constitutional rights.”
  • Judge Oldham concurred in the majority on standing and additionally wrote on the merits to argue that S.B. 4’s arrest provision (§ 51.02) is not conflict-preempted. He offered a detailed hypothetical of a Texas rancher near Eagle Pass whose fences are cut by migrants, with local deputies arresting them, after which a state magistrate issues a return order and state officers deliver the aliens to federal authorities at a port of entry—arguing this “heartland application” “actively facilitates federal law.” He accused the dissenters of applying an “inverse Salerno doctrine”—imagining “the most aggressive, furthermost, outer-bound potential applications” of the law, ignoring Texas’s assurances, and then facially enjoining the entire statute. He also questioned whether Ex parte Young applies at all, noting that the dissent “appears to concede that S.B. 4 can never be enforced against these plaintiffs.”
  • Judge Richman dissented, contending that Las Americas has standing and that S.B. 4’s core provisions are preempted. She opened: “Texas has enacted its own immigration laws. . . . The Arizona decision remains controlling, and the immigration laws Texas has enacted are preempted by federal law.” On standing, she contended that Las Americas satisfies Havens Realty and Alliance because its “core business activities”—legal counseling and referral services for low-income immigrants—are directly impaired by S.B. 4, not merely voluntarily diverted. She wrote: “I cannot see a principled distinction between Havens Realty, the discussion of it in Alliance for Hippocratic Medicine, and the present case.”
  • On the merits, Judge Richman contended that S.B. 4 is both field- and conflict-preempted, reasoning that Congress intended to “occupy the field of immigration policies concerning entry into and removal from the United States” and citing nearly 150 years of Supreme Court authority that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” She detailed how S.B. 4’s provisions conflict with Arizona v. United States—particularly in authorizing state officers to arrest aliens and state courts to order their removal without federal direction—quoting the Supreme Court: “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” She also addressed the State War Clause defense, concluding: “Constitutional text, structure, and history provide strong evidence that federal statutes addressing matters such as alien entry and removal are still supreme even when the State War Clause has been triggered.” She would have affirmed the preliminary injunction.
  • Judge Graves dissented, congending the majority “oversimplif[ied]” both the plaintiffs’ injury and controlling caselaw. He contended the majority “trivializes plaintiffs’ injury” by framing the nonprofits’ function as “merely ‘ordinary legal representation'” and their injury as “‘voluntary resource diversion,'” when in fact they “provide legal advocacy and counseling and referral services.” Invoking Einstein, he wrote: “‘Everything should be made as simple as possible, but no simpler.’ The simpler solution fails here.” He argued the majority “reduces a still-binding case, Havens, to a peripheral fact—obscuring its true context,” and that Alliance‘s “critical” holding was that HOME “operated a housing counseling service” that was directly impaired—which is equally true of Las Americas.
  • Judge Higginson dissented, contending that the preemption violation and the injury to Las Americas are inseparable: “it is impossible to disentangle preemption from injury in this case.” He criticized the majority for disregarding the district court’s jurisdictional fact-finding that “SB 4 will completely change the manner in which Plaintiffs must reach, counsel, and represent noncitizens.” He characterized the majority’s approach as “facilitat[ing] Texas’s effort to defy federal law,” and emphasized that “removing foreign nationals who reside in our country is indivisible from national security and foreign relations powers”—a responsibility that remains federal regardless of which administration is in office. He closed by quoting Arizona: “Although ‘[Texas] may have understandable frustrations with the problems caused by illegal immigration . . . the State may not pursue policies that undermine federal law.'”

Unpublished decisions

• Singh v. Blanche, 25-60480, petition for review of BIA order
  • per curiam (Smith, Graves, Wilson) (no oral argument), immigration
  • Dismissing petition for review of BIA order denying a motion to reopen, where the petition was filed more than 30 days after the BIA’s decision.

• United States v. Guice, 25-60315, c/w 25-60317, appeal from S.D. Miss.
  • per curiam (Jones, Richman, Douglas) (no oral argument), criminal, sentencing, guilty plea
  • Dismissing appeal of 175-month sentence on guilty-plea conviction of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute methamphetamine, on basis of appeal-waiver in plea agreement.

• United States v. Marquez, 25-50866, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Federal prisoner Jose Marquez argued the district court failed to give reasoned consideration to his arguments regarding rehabilitation, low recidivism risk, advanced age, reentry plans, sentencing disparities, and remorse, and that its reasoning was insufficient for appellate review.
  • Reviewing for abuse of discretion, the Fifth Circuit found the district court’s order adequately considered and rejected Marquez’s arguments and properly weighed the § 3553(a) factors against release. The court also rejected Marquez’s challenge to the drug quantities cited in the order, holding that § 3582(c) cannot be used to challenge the legality or duration of a sentence. The court declined to reach whether extraordinary and compelling reasons existed, since the alternative § 3553(a) holding independently supported denial. Marquez’s request for reassignment to a different district judge was also denied.
  • The court warned Marquez that “some of the cases Marquez cites do not exist and nearly every quotation from the caselaw that he cites from existing caselaw is either misquoted or fabricated.” Marquez was cautioned that continued “use of deceptive briefing practices akin to those employed in this case may result in the imposition of appropriate sanctions.”

• United States v. Vaughn, 25-50136, appeal from W.D. Tex.
  • per curiam (Barksdale, Oldham, Douglas) (no oral argument), criminal, Confrontation Clause, supervised release
  • Affirming conviction of conspiracy to transport illegal aliens and within-Guidelines 30-month sentence with three years of supervised release.
  • Vickiel Vincent Vaughn raised two principal issues: (1) whether the district court erred in admitting text-message evidence on authenticity and Confrontation Clause grounds, and (2) whether the court imposed an improper supervised-release term by failing to make individualized findings and by relying on impermissible sentencing factors under 18 U.S.C. § 3553(a)(2)(A).
  • The court found the text messages were properly authenticated and were not testimonial statements implicating the Confrontation Clause, as they facilitated the transportation of illegal aliens rather than serving an investigative or prosecutorial purpose. On the supervised-release challenge—reviewed only for plain error because Vaughn failed to preserve the issues below—the court held that the within-Guidelines sentence did not require lengthy explanation and that the record did not show reliance on the prohibited retributive factors “expressly or by unmistakable implication.”

• Stanford v. King of Freight, L.L.C., et al., No. 25-11346, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), civil, vexatious litigant
  • Affirming dismissal of suit under vexatious-litigant order.
  • Jason Stanford, previously declared a vexatious litigant by the district court and required to seek leave before filing any new lawsuits in the Northern District of Texas, filed a new civil action without obtaining leave. The district court dismissed his claims without prejudice, struck his filings, closed the case, and directed the clerk not to accept future filings unaccompanied by a motion for leave. On appeal, Stanford challenged the validity of the underlying vexatious-litigant order, arguing the dismissal rested “entirely upon enforcement of that void order.”
  • The Fifth Circuit noted it had already affirmed the denial of Stanford’s motion to vacate the vexatious-litigant order in a prior appeal. Reviewing for abuse of discretion, the court found Stanford indisputably failed to seek leave before filing suit, warranting dismissal under Federal Rule of Civil Procedure 41(b).