United States Court of Appeals
             for the Fifth Circuit                          United States Court of Appeals
                                                                     Fifth Circuit
                             ____________
                                                                   FILED
                                                                July 3, 2025
                               No. 24-50149
                             ____________                     Lyle W. Cayce
                                                                   Clerk
United States of America,

                                                         Plaintiff—Appellee,

                                   versus

State of Texas; Greg Abbott, in his official capacity as Governor of
Texas; Texas Department of Public Safety; Freeman F.
Martin, in his official capacity as Director of Texas Department of Public
Safety,

                                                    Defendants—Appellants,

______________________________

Las Americas Immigrant Advocacy Center; American
Gateways; County of El Paso, Texas,

                                                       Plaintiffs—Appellees,

                                   versus

Freeman F. Martin, in his official capacity as Director of the State of Texas
Department of Public Safety,

                                                     Defendant—Appellant.
                     ______________________________

                    Appeal from the United States District Court
                         for the Western District of Texas
                       USDC Nos. 1:23-CV-1537, 1:24-CV-8
                    ______________________________

Before Richman, Oldham, and Ramirez, Circuit Judges.
Priscilla Richman, Circuit Judge:
        The State of Texas enacted legislation known as S. B. 4 that prohibits
noncitizens from illegally entering or reentering the state and sets forth
removal procedures. The United States, as well as several other plaintiffs,
filed two separate lawsuits challenging S. B. 4, and these plaintiffs filed
motions for preliminary injunctions in each case. 1 After consolidating the
cases, 2 the district court granted a preliminary injunction, staying the
effectiveness of the new laws. 3 The defendants filed an interlocutory appeal, 4
and this court denied a motion to stay the district court’s injunction pending
appeal. 5 We now consider the merits of the appeal from the grant of the
preliminary injunction.
        The United States voluntarily dismissed its complaint without
prejudice in the district court pursuant to Rule 41(a)(1)(A)(i) on March 18,
2025. 6 The United States’ appeal is now moot.



        _____________________
        1
            See United States v. Texas, 

, 651 & n.1 (W.D. Tex. 2024).
        2
            ROA.1614-15.
        

 F. Supp. 3d at 702.
        4
            ROA.592-93.
        5
            United States v. Texas, 

 (5th Cir. 2024).
        6
         Notice of Voluntary Dismissal at 1, Texas, 

 (No. 1:24-CV-8),
Dkt. No. 79.




                                               2
                                        No. 24-50149


       The remaining plaintiffs are Las Americas Immigrant Advocacy
Center (Las Americas) and American Gateways (to whom we will refer
collectively as the Nonprofit Plaintiffs), and the County of El Paso, Texas.
The remaining defendants in the district court are the District Attorney for
the 34th Judicial District of Texas and Freeman F. Martin in his official
capacity as Director of the State of Texas Department of Public Safety
(DPS). (The plaintiffs sued Stephen C. McCraw in his official capacity as
Director of DPS, and Martin has since replaced McCraw as the Director. 7)
However, the District Attorney moved to dismiss his appeal in our court, 8
and we granted that motion. 9 Accordingly, the district court’s preliminary
injunction as to the claims against the District Attorney for the 34th Judicial
District of Texas remains in effect.
       We affirm the district court’s order granting a preliminary injunction
as it pertains to Las Americas’s claims against Director Martin. It is therefore
unnecessary to consider matters raised in this appeal with regard to American
Gateways or El Paso County.
                                                 I
       The origins of this litigation and its course through March 2024 are
set forth in our decision denying a stay pending appeal of the preliminary
injunction. 10 We will not recount that background here, except as necessary
to resolve the issues presently before us.


       _____________________
       7
           See Fed. R. Civ. P. 25(d); Fed. R. App. P. 43(c)(2).
       8
         Agreed Motion to Dismiss Appeal at 2-3, Texas, 

 (No. 24-50149),
Dkt. No. 244.
       9
           Order, Texas, 

 (No. 24-50149), Dkt. No. 247-2.
       10
            See Texas, 

.




                                             3
                                        No. 24-50149


       In November 2023, the Texas legislature passed Senate Bill 4
(S. B. 4). 11 The bill’s preamble reflects that its purpose is to prohibit “the
illegal entry into or illegal presence in [the] state by” an alien. 12 The bill
“authoriz[es] or requir[es] under certain circumstances the removal of
persons who violate those prohibitions.” 13 S. B. 4 amended the Texas Penal
Code to include two new criminal offenses entitled “Illegal Entry from
Foreign Nation” and “Illegal Reentry by Certain Aliens.” 14 Those and other
implementing laws are the primary focus of this appeal.
       The crime of “Illegal Entry from Foreign Nation” is codified at Texas
Penal Code § 51.02. The section provides: “A person who is an alien
commits an offense if the person enters or attempts to enter this state directly
from a foreign nation at any location other than a lawful port of entry.” 15 The
section also enumerates affirmative defenses, including when: (1) the federal
government has granted the defendant “lawful presence in the United
States”; (2) the federal government has granted the defendant asylum under

; (3) the defendant’s conduct does not constitute a violation
of 

(a), which prohibits illegal entry into the United States;
and (4) the defendant “was approved for benefits under the federal Deferred
Action for Childhood Arrivals” program between certain dates. 16
       The crime of “Illegal Reentry by Certain Aliens” is codified at Texas
Penal Code § 51.03.            This section prohibits aliens from “enter[ing],

       _____________________
       11
            S. B. 4, 88th Leg., 4th Called Sess. (Tex. 2023).
       12
            Id.
       13
            Id.
       14
            Id. § 2 (codified at Tex. Penal Code §§ 51.02-03).
       15
            Tex. Penal Code § 51.02(a).
       16
            Id. § 51.02(c).




                                               4
                                     No. 24-50149


attempt[ing] to enter,” or being “found in” the state after the person
“(1) has been denied admission to or excluded, deported, or removed from
the United States; or (2) has departed from the United States while an order
of exclusion, deportation, or removal is outstanding.” 17 This provision does
not identify any affirmative defenses. 18
       If a person violates § 51.02 or § 51.03, S. B. 4 empowers Texas state
judges and magistrates to order them to return to the foreign nation from
which they entered or attempted to enter. 19 Under Texas Code of Criminal
Procedure article 5B.002, a state judge or magistrate “may” enter such an
order if “the person agrees to the order,” among other requirements. 20
Under the same provision, the presiding judge “shall” issue the order if the
defendant is convicted of either offense. 21 Failure to comply with an article
5B.002 order is a second-degree felony, 22 punishable by a fine of up to
$10,000 and up to twenty years of imprisonment. 23
       Importantly, S. B. 4 provides that a “court may not abate the
prosecution of an offense under Chapter 51 . . . on the basis that a federal
determination regarding the immigration status of the defendant is pending
or will be initiated.” 24



       _____________________
       17
            Id. § 51.03(a).
       18
            See id. § 51.03.
       19
            S. B. 4 § 1 (codified at Tex. Code Crim. Proc. art. 5B.002).
       20
            Tex. Code Crim. Proc. art. 5B.002(c).
       21
            Id. art. 5B.002(d).
       22
            Tex. Penal Code § 51.04.
       23
            Id. § 12.33.
       24
            S. B. 4 § 1 (codified at Tex. Code Crim. Proc. art. 5B.003).




                                           5
                                          No. 24-50149


         The district court granted a preliminary injunction precluding the
enforcement of the new laws promulgated in S. B. 4. Director Martin asks us
to vacate that preliminary injunction, arguing that the plaintiffs do not have
standing to assert their claims and that, if we reach the merits of those claims,
S. B. 4 is not preempted by federal law.
         We note that we are confined to the record that was before the district
court.        The district court issued a preliminary injunction prior to the
November 2024 elections, and before President Trump assumed office. The
dissenting opinion hinges some of its positions on the fact that President
Trump’s policies and how his administration partners with Texas regarding
immigration issues differ markedly from former President Biden’s policies.
Again, our review is based on the evidence and record that was before the
district court.
                                                II
         The first issue we confront is standing. The district court concluded
that the Nonprofit Plaintiffs had standing. 25
         In determining whether to grant a stay pending appeal, we did not
consider whether the Nonprofit Plaintiffs or El Paso County had standing to
pursue their respective claims. That was because we concluded that the
United States did have standing to pursue its claims, and that applying the
factors set forth in Nken v. Holder, 26 a stay of the preliminary injunction
should not issue. 27 It was therefore unnecessary to consider the standing of



         _____________________
         25
              United States v. Texas, 

, 655-58 (W.D. Tex. 2024).
         26
              

 (2009).
         27
              See United States v. Texas, 

 (5th Cir. 2024).




                                                 6
                                          No. 24-50149


the other plaintiffs. 28 Since the United States has dismissed its complaint in
the district court in its entirety, we now consider whether at least one of the
remaining plaintiffs has standing to pursue its claims against Director Martin,
the only remaining appellant.
        The Supreme Court has explained that “[a]t the preliminary
injunction stage, . . . the plaintiff must make a ‘clear showing’ that she is
‘likely’ to establish each element of standing.” 29 To establish standing, “a
plaintiff must demonstrate (i) that she has suffered or likely will suffer an
injury in fact, (ii) that the injury likely was caused or will be caused by the
defendant, and (iii) that the injury likely would be redressed by the requested
judicial relief.” 30 The injury “must be actual or imminent, not speculative—
meaning that the injury must have already occurred or be likely to occur
soon.” 31 “[W]hen a plaintiff seeks prospective relief such as an injunction,
the plaintiff must establish a sufficient likelihood of future injury.” 32




        _____________________
        28
           See, e.g., Massachusetts v. EPA, 

 (2007) (“Only one of the
petitioners needs to have standing to permit us to consider the petition for review.”);
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 

, 52 n.2 (2006) (“The Court of
Appeals did not determine whether the other plaintiffs have standing because the presence
of one party with standing is sufficient to satisfy Article III’s case-or-controversy
requirement.”).
        29
           Murthy v. Missouri, 

 (2024) (quoting Winter v. Nat. Res. Def.
Council, Inc., 

 (2008)).
        30
            FDA v. All. for Hippocratic Med., 

 (2024) (first citing Summers
v. Earth Island Inst., 

 (2009); and then citing Lujan v. Defs. of Wildlife, 

 (1992)).
        31
             

 at 381 (citing Clapper v. Amnesty Int’l USA, 

 (2013)).
        32
             

 (citing Clapper, 

).




                                                 7
                                       No. 24-50149


                                             A
        Las Americas alleges that S. B. 4 will directly affect its ability to
provide legal services to immigrants. It is not suing on behalf of those who
have entered or reentered, or may enter or reenter, Texas illegally; it is not
asserting “associational standing.” 33
        The Supreme Court’s decision in Havens Realty Corp. v. Coleman 34
strongly signals that Las Americas has demonstrated injury and has standing.
In Havens Realty, an organization known as HOME (Housing Opportunities
Made Equal) brought suit “in its own right” seeking damages from
defendants who were alleged to have steered potential renters who were black
away from specific properties by falsely telling them there were no
apartments available. 35 The Supreme Court observed that “HOME also
alleged injury” to itself because it “asserted that the steering practices of [a
defendant] had frustrated the organization’s counseling and referral services,
with a consequent drain on resources.” 36 The Supreme Court quoted a
passage in HOME’s complaint that described its injury:
        Plaintiff HOME has been frustrated by defendants’ racial
        steering practices in its efforts to assist equal access to housing
        through counseling and other referral services. Plaintiff
        _____________________
        33
            See generally OCA-Greater Hous. v. Texas, 

 (5th Cir. 2017)
(“‘Associational standing’ is derivative of the standing of the association’s members,
requiring that they have standing and that the interests the association seeks to protect be
germane to its purpose. By contrast, ‘organizational standing’ does not depend on the
standing of the organization’s members. The organization can establish standing in its own
name if it ‘meets the same standing test that applies to individuals.’” (footnotes omitted)
(first quoting Tex. Democratic Party v. Benkiser, 

 (5th Cir. 2006); and then
quoting Ass’n of Cmty. Orgs. for Reform Now v. Fowler, 

, 356 (5th Cir. 1999))).
        34
             

 (1982).
        35
             

.
        36
             

.




                                             8
                                           No. 24-50149


       HOME has had to devote significant resources to identify and
       counteract the defendant’s [sic] racially discriminatory steering
       practices. 37
       The Court held that if these allegations were true, “there can be no
question that the organization has suffered injury in fact.” 38 The Court
characterized the injury as “steering practices [that] have perceptibly
impaired HOME’s ability to provide counseling and referral services for
low- and moderate-income homeseekers.” 39 The Court continued, “[s]uch
concrete and demonstrable injury to the organization’s activities—with the
consequent drain on the organization’s resources—constitutes far more than
simply a setback to the organization’s abstract social interests.” 40 We see no
daylight between Las Americas’s allegations (supported by evidence
presented during the preliminary injunction proceedings) and those in
Havens Realty regarding standing.
       Implementation of S. B. 4 would cause a concrete injury to Las
Americas’s provision of legal services to immigrants. In an affidavit executed
by one of Las Americas’s directors, Las Americas averred it will “need to
train staff members to address the specific needs of those detained pursuant
to S.B. 4, and develop new materials to advise defendants of their rights and
the manner in which the state law intersects with their rights under federal
law.” 41 At a minimum, the cost of developing new materials and training
staff to facilitate representation of those detained under Texas’s new
immigration laws is an economic injury. “For standing purposes, a loss of
       _____________________
       37
            

 (alteration in original).
       38
            

       39
            

       40
            

       41
            ROA.943, ¶ 35.




                                                   9
                                         No. 24-50149


even a small amount of money is ordinarily an ‘injury.’” 42 This economic
injury could also be labeled a “diversion of resources,” but attaching such a
label cannot transmogrify a cost. It is what it is: a cost that requires an outlay
of money.
        Texas’s new immigration laws have affected or will affect Las
Americas’s provision of legal services to immigrants, its “core” activity, in
other direct and concrete ways. 43 Las Americas described in the district court
proceedings how the enactment of S. B. 4 has already caused it to expend
resources in order to provide legal counsel to immigrants seeking to deal with
the new laws’ ramifications. 44 But the prospective impact on Las Americas’s
provision of legal services is greater. If S. B. 4 is preempted by federal
statutes and regulations but goes into effect for a period of time before that
determination is made, Las Americas will have expended time and resources
in creating and implementing an entirely new operation to serve immigrants
arrested under S. B. 4 that would be irretrievably lost. 45
        Its success in assisting state detainees in obtaining relief under federal
immigration laws is also likely to be significantly less than when it represents
federal detainees due to the differences under the new state immigration
laws. 46 Las Americas maintains that its “purpose will be frustrated, as S.B.
4 will subject noncitizens to rapid removal outside of federal removal
proceedings and before Las Americas can assist them in seeking the relief
        _____________________
        42
             Czyzewski v. Jevic Holding Corp., 

 (2017).
        43
           Cf. FDA v. All. for Hippocratic Med., 

 (2024) (“In other words,
Havens’s actions directly affected and interfered with HOME’s core business
activities.”).
        44
             ROA.940, ¶ 24; ROA.945, ¶¶ 44-46; ROA.946-47, ¶¶ 50-51.
        45
             See ROA.947, ¶ 52.
        46
             ROA.945-48.




                                              10
                                  No. 24-50149


federal law provides.” 47 An affidavit submitted by Las Americas explains
that “reaching out when individuals are arrested [under the new Texas laws]
is critical to ensuring that they are advised as to their ability to apply for
asylum, and submit timely applications.” 48
       But for the implementation of S. B. 4, the time and resources focused
on those detained under the new state immigration laws would instead be
expended representing immigrants who are contending only with the federal
system. 49 And, because Las Americas cannot serve as many immigrants
arrested and detained under S. B. 4 as it can through its existing operations
for immigrants navigating the federal system, the total number of immigrants
Las Americas can serve in obtaining asylum or other relief will be lower. 50
The evidence supporting these assertions is detailed in the record, as follows.
       Las Americas is a nonprofit legal services organization based in El
Paso, Texas. 51 Las Americas has provided legal, counseling, and referral
services to immigrants for more than thirty-seven years, since 1987. 52
       According to the affidavit, Las Americas seeks “to ensure that
individuals have a fair opportunity to establish their eligibility for relief from
removal from the United States, with a primary focus on ensur[ing]
individuals are not wrongfully removed to persecution or torture.” 53 It
“provide[s] immigration counseling and representation to immigrants

       _____________________
       47
            ROA.948, ¶ 56.
       48
            ROA.942, ¶ 32.
       49
            ROA.945-48.
       50
            ROA.945-48.
       51
            ROA.935, ¶ 3.
       52
            ROA.937, ¶ 10.
       53
            ROA.935, ¶ 3.




                                        11
                                        No. 24-50149


seeking asylum and those detained by the U.S. government in and around
West Texas, New Mexico, and Ciudad Juarez, Mexico, including by assisting
and representing individuals living in the community to apply affirmatively
for asylum.” 54 It also counsels “individuals facing expedited removal who
are undergoing Credible Fear Interviews (CFIs)” and “represent[s] people
subject to reinstatement of a prior removal order in Reasonable Fear
Interviews (RFIs).” 55 The affidavit further explains that “[f]or individuals
who are able to clear the CFI hurdle, [Las Americas’s] detained team helps
with subsequent stages of the immigration process when capacity allows,
including asylum applications, evidence gathering, appeals, bond and parole
requests, mental health screenings, competency evaluations, and more.” 56
“Where resources allow, [it] provide[s] these services as part of full
representation in immigration court and before the Board of Immigration
Appeals. In other cases, [it] offer[s] these services as pro se assistance. For
pro se individuals, [it] also provide[s] assistance with document preparation
and translation.” 57
       The affidavit explains that until the passage of S. B. 4, “[t]he staffing
of Las Americas, and the allocation of resources, has always been designed to
provide the assistance and representation people need to seek protection
through the federal immigration system.” 58 Las Americas counsels and




       _____________________
       54
            ROA.935, ¶ 4.
       55
            ROA.935-36, ¶ 4.
       56
            ROA.939, ¶ 18.
       57
            ROA.939, ¶ 18 (italics omitted).
       58
            ROA.940, ¶ 22.




                                               12
                                 No. 24-50149


represents immigrants in CBP or ICE detention 59 and has immigrant clients
who are not in detention. 60
       For those detained by ICE, Las Americas “provides know-your-
rights presentations in the ICE facilities, and then screens individuals for
further legal representational needs.” 61       Las Americas “has developed
systems to gain access to detainees, arrange for group presentations, reserve
sufficient time and space in the facility for confidential attorney-client
meetings, track the progress of detained noncitizens, and remain in contact
with clients through video conference, phone calls, and written
correspondence throughout their case.” 62
       Las Americas “serves its non-detained clients through a community
representation model.” 63 Under this model, Las Americas “works with
partner organizations like shelters, churches, hospitals, and consulates to
make contact with noncitizen clients, who then come to Las Americas[’s]
offices in person for further consultation and representation.” 64 In 2023, Las
Americas “served approximately 480 people through these non-detained
services.” 65
       The enactment of S. B. 4 opened an entirely new front that Las
Americas must navigate to serve its clients. S. B. 4 “creates a new state
system to regulate immigration that operates independently of the federal
       _____________________
       59
            ROA.941, ¶ 28.
       60
            ROA.941, ¶ 26.
       61
            ROA.941, ¶ 28.
       62
            ROA.941, ¶ 28.
       63
            ROA.941, ¶ 27.
       64
            ROA.941, ¶ 27.
       65
            ROA.941, ¶ 27.




                                      13
                                         No. 24-50149


system.” 66 The affidavit relates that “Las Americas does not have any
programs or provide any services to individuals in state or county jails or
prisons. S.B. 4 requires Las Americas to develop an entirely new operation
to provide immigration representation to those arrested under S.B. 4.” 67 The
impact of S. B. 4 on Las Americas’s delivery of services is direct. The
affidavit asserts, “Las Americas will have to divert its resources to create an
entirely new representation program and Know Your Rights trainings to
ensure that those detained pursuant to S.B. 4 can seek critical humanitarian
protections such as asylum.” 68 As already noted, Las Americas will “need
to train staff members to address the specific needs of those detained
pursuant to S.B. 4, and develop new materials to advise defendants of their
rights and the manner in which the state law intersects with their rights under
federal law.” 69
           Las Americas avers that development of a program to serve those
arrested or detained under the new Texas laws “will require a major
investment of resources.” 70 The evidence recounted above supports a
factual finding in this regard. Las Americas will be paying its employees to
retool and to represent immigrants caught up in the newly enacted state
laws. 71
           The Texas Department of Public Safety (DPS) has the authority to
arrest and detain illegal immigrants under S. B. 4. The Director intends to

           _____________________
           66
                ROA.940, ¶ 23.
           67
                ROA.942, ¶ 30.
           68
                ROA.947, ¶ 54.
           69
                ROA.943, ¶ 35.
           70
                ROA.942, ¶ 34.
           71
                See ROA.938, ¶ 16; ROA.942, ¶ 30; ROA.942-43, ¶¶ 34-35.




                                               14
                                     No. 24-50149


authorize DPS to exercise that authority. 72 Las Americas’s director said in
her affidavit that
       [e]ven if the removal provisions of S.B. 4 did not exist, the law
       would still negatively [sic] Las Americas’ resources, as arrests
       and detention under the law will continue to negatively impact
       people’s ability to apply for asylum and other forms of lawful
       immigration status and make representing our clients more
       difficult and time-consuming. 73
She related, “For example, even without S.B. 4’s removal provisions, our
legal staff would still need to decide asylum sooner than they would have
previously for some of our clients to protect their right to seek asylum
because of the risks of arrest and detention under S.B. 4.” 74 She explained,
“We will still have to develop an S.B. 4 specific program to screen, assist and
represent those detained under S.B. 4 to ensure they can meet the one year
deadline to affirmatively [sic] for asylum.” 75
       Las Americas avers that it must prioritize its numerous goals and
services, and that its primary goal is “to serve as many asylum seekers as
possible with [its] limited resources while focusing [its] efforts on ensuring
that those noncitizens at the greatest danger from removal are able to access
protection.” 76 To that end, it “focus[es] on assistance to those facing
summary removal in expedited removal proceedings.” 77 In the past, Las


       _____________________
       72
            ROA.314-15, ¶¶ 3-9; ROA.959-60, ¶ 10.
       73
            ROA.947, ¶ 52.
       74
            ROA.947, ¶ 52.
       75
            ROA.947, ¶ 52.
       76
            ROA.937, ¶ 12.
       77
            ROA.937, ¶ 13.




                                           15
                                   No. 24-50149


Americas has “shifted [its] priorities . . . to meet this goal in response to
changes in federal policies.” 78 The affidavit avers that
       We are one of the only organizations providing pro bono
       representation to immigrants, asylum seekers, and other
       persons migrating or in removal proceedings in the West
       Texas, New Mexico, and Ciudad Juarez area. For this reason,
       we have consistently focused our efforts on the most vulnerable
       to removal, such as asylum seekers and the victims of crime,
       and those whom the private bar may be less able or willing to
       represent. 79
The affidavit states that “[r]esponding to S.B. 4 through changes to our
programs is a necessary part of and consistent with our programmatic
mission.” 80
       Las Americas’s director of legal services at its immigrant advocacy
center said in her affidavit that S. B. 4 “has already forced us to divert our
limited resources.” 81       The organization has “received questions from
community members about S.B. 4—whether and when interaction with state
law enforcement will result in questioning about form of entry into the United
States and, thus, arrest and removal from the United States.” 82          Las
Americas has “received questions about the potential for noncitizen parents
of U.S. citizen children being arrested and removed because of interaction




       _____________________
       78
            ROA.937, ¶ 13.
       79
            ROA.938, ¶ 14.
       80
            ROA.938, ¶ 14.
       81
            ROA.940, ¶ 24.
       82
            ROA.945, ¶ 46.




                                        16
                                       No. 24-50149


with state officers; the interaction between S.B. 4 and federal removal
proceedings; and the impact of S.B. 4 on the ability to seek asylum.” 83
       There are also geographic and institutional considerations. Legal
service providers would have to contend with the fact that their clients or
those they seek to represent would be arrested by federal officers and
detained in federal facilities, while state officers would independently
conduct arrests and detain at least some, if not many, immigrants in state or
county facilities. 84
       The Las Americas affidavit averred, “These changes in Las
Americas’ services will necessarily require diverting funding and staff time
from community-based representation programs, and decrease the number
of people Las Americas can serve.” 85 That is a reasonable deduction, and
the district court’s factual findings in this regard are not clearly erroneous.
       Las Americas has identified and described impacts S. B. 4 would have
on its operations that are far more detailed and at least as impactful as those
the Supreme Court held to have established injury to an organization in
Havens Realty Corp. 86 The Supreme Court’s more recent decision in FDA v.
Alliance for Hippocratic Medicine 87 reinforces, rather than undermines, our
conclusion that Las Americas has likely established standing. The Alliance
for Hippocratic Medicine decision addressed Havens Realty Corp. It is also



       _____________________
       83
            ROA.946, ¶ 50.
       84
            ROA.314-15, ¶¶ 3-4.
       85
            ROA.948, ¶ 55.
       86
            See Havens Realty Corp. v. Coleman, 

 (1982).
       87
            

 (2024).




                                             17
                                  No. 24-50149


apparent that the factual circumstances in the case before us and those in
Alliance for Hippocratic Medicine are not comparable.
       In Alliance for Hippocratic Medicine, “pro-life medical associations, as
well as several individual doctors,” sued the Food and Drug Administration
(FDA) over its approval of mifepristone, an abortion drug. 88 None of the
plaintiffs used or prescribed the drug. 89 Instead, “the plaintiffs want[ed]
FDA to make mifepristone more difficult for other doctors to prescribe and
for pregnant women to obtain.” 90 The Court thoroughly dissected the
individual physicians’ claims and readily concluded they did not have
standing. 91 We will not dwell on that analysis, though it is certainly not
irrelevant. The most salient analysis is that of the organizations’ standing.
       In analyzing how an organization could establish its own injury for
standing purposes, the Supreme Court contrasted the organizational
plaintiffs’ alleged injuries in Havens Realty with those of the organizational
plaintiffs in Alliance for Hippocratic Medicine. 92 The organizational plaintiffs
in the latter case asserted that when the FDA relaxed regulation of the
abortion drug mifepristone, that “‘forced’ the associations to ‘expend
considerable time, energy, and resources’ drafting citizen petitions to FDA,
as well as engaging in public advocacy and public education.” 93 In explaining
why the organizational plaintiffs had not established an injury for purposes of
standing, the Court explicated its holding in Havens Realty. The Court said,

       _____________________
       88
            Id. at 376-77.
       89
            Id. at 374.
       90
            Id.
       91
            Id. at 386-93.
       92
            Id. at 395.
       93
            Id. at 394.




                                       18
                                        No. 24-50149


“Critically, HOME [(an organizational plaintiff)] not only was an issue-
advocacy organization, but also operated a housing counseling service.” 94 In
the case before us, Las Americas is not only an issue-advocacy organization—
it operates to provide legal services and legal counseling to low-income
immigrants. The Supreme Court further explained its holding in Havens
Realty, saying, “[W]hen Havens [(a defendant)] gave HOME’s employees
false information about apartment availability, HOME sued Havens because
Havens ‘perceptibly impaired HOME’s ability to provide counseling and
referral services for low- and moderate-income homeseekers.’” 95
       In the present case, Las Americas contends that the State of Texas has
enacted immigration laws that are preempted by federal statutes and
regulations, and those state laws would perceptibly impair its ability to
provide counseling and referral services for low- and moderate-income
immigrant clients. The state laws differ in significant respects from federal
laws and were intended to permit the state to apprehend and arrest large
numbers of immigrants that the federal government had not apprehended or
would not apprehend. The state laws would also expedite the processing of
immigrants, which would have the impact of limiting or in some cases
eliminating the opportunity or time to seek admittance under numerous
federal laws. 96 The new state laws specifically provide that a “court may not
abate the prosecution of an offense under Chapter 51 . . . on the basis that a
federal determination regarding the immigration status of the defendant is
pending or will be initiated.” 97

       _____________________
       94
            Id. at 395.
       95
            Id. (quoting Havens Realty Corp. v. Coleman, 

 (1982)).
       96
            See infra pp. 64-65, 77-80, 83-88.
       97
            Tex. Code Crim. Proc. art. 5B.003.




                                                 19
                                         No. 24-50149


       In Alliance for Hippocratic Medicine, the Supreme Court explained its
holding in Havens Realty, saying “[i]n other words, Havens’s actions directly
affected and interfered with HOME’s core business activities—not
dissimilar to a retailer who sues a manufacturer for selling defective goods to
the retailer.” 98 Las Americas’s core activity is providing legal representation
and legal counseling to low-income immigrants, prioritizing reaching
immigrants in time to assist them in asserting asylum or other claims under
federal immigration laws. 99 The state laws at issue directly interfere with that
activity.      Las Americas is not “dissimilar to a retailer who sues a
manufacturer for selling defective goods to the retailer.” 100 Texas has
manufactured new laws that, if preempted, would unlawfully interfere with
the federal immigration process that immigrants navigate. Las Americas
provides legal services and counseling to immigrants who are affected by the
new state laws, much like the “retailer” analogy in Alliance for Hippocratic
Medicine. The state laws add a new, separate, independent, state immigration
regime to which those whom Las Americas serves would be wrongfully
subjected if the new state laws are preempted. Just as the defendants’ “false
information about apartment availability” in Havens “perceptibly impaired
[the non-regulated organizational plaintiff’s] ability to provide counseling
and referral services for low- and moderate-income homeseekers,” 101 the
Texas laws at issue would increase the need for legal services and counseling,
and decrease the overall number of low- and moderate-income immigrants
Las Americas could successfully assist in asserting asylum and other federal


       _____________________
       98
            All. for Hippocratic Med., 

.
       99
            ROA.945-48.
       100
             All. for Hippocratic Med., 

.
       101
             

 (quoting Havens Realty Corp. v. Coleman, 

 (1982)).




                                               20
                                          No. 24-50149


immigration claims. 102 Las Americas has shown “far more than simply a
setback to the organization’s abstract social interests.” 103
        The dissenting opinion attempts to distinguish Havens Realty as well
as the Supreme Court’s discussion of Havens Realty in Alliance for Hippocratic
Medicine. First, the dissenting opinion says, in Havens Realty, there was “an
action by the defendant against the plaintiff ‘directly,’” which was “a lie told
by the defendant to the plaintiff.” 104 The dissenting opinion then asserts,
“So, as Alliance for Hippocratic Medicine emphasized, HOME’s theory of
standing was just like that of ‘a retailer who sues a manufacturer for selling
[it] defective goods.’” 105 With great respect, we disagree with the dissenting
opinion’s characterization. The defendant in Havens Realty falsely told an
employee of HOME that there were no apartments for rent. Neither the
employee nor HOME was actually interested in renting an apartment. They
were attempting to determine if the defendant was illegally “steering”
people away from its properties based on race. 106 The direct injury to
HOME was that the lie, i.e. illegal steering, made it more difficult for those
whom HOME counseled and provided services to obtain housing. The
Supreme Court made this clear in Alliance for Hippocratic Medicine in saying
“when Havens gave HOME’s employees false information about apartment
availability, HOME sued Havens because Havens ‘perceptibly impaired
        _____________________
        102
              ROA.945-48.
        103
              All. for Hippocratic Med., 

 (quoting Havens Realty, 

).
        104
              Post at 108.
        105
              Post at 108 (alteration in original) (quoting All. for Hippocratic Med., 

).
        106
          Havens Realty, 

 (“In the present context, ʻtesters’ are individuals
who, without an intent to rent or purchase a home or apartment, pose as renters or
purchasers for the purpose of collecting evidence of unlawful steering practices.”).




                                                21
                                        No. 24-50149


HOME’s ability to provide counseling and referral services for low- and
moderate-income homeseekers.’” 107
        That is no different from the injury in the present case. When Texas
enacted new laws to regulate entry and removal of aliens, it represented
directly not only to immigrants, but the plaintiffs in this case, and indeed the
public, that it has the lawful authority to do so. The former Director of DPS
publicly testified—representing to immigrants, Las Americas, and the
public—that he intended to enforce the state entry and removal laws based
on his authority as the Director of DPS. 108 Again, the representations that
the DPS, acting under the direction of the Director, has such authority are
false if the laws are preempted. As part of its core activities, Las Americas
intends to represent at least some asylum seekers or seekers of other federal
immigration rights who would be arrested or detained by the new Texas laws.
Las Americas is in the same position as HOME. HOME’s standing was not
precluded by “voluntarily” 109 representing homeseekers, any more than Las
Americas should be precluded from “voluntarily” providing pro bono legal
services to immigrants. The Supreme Court did not deem the “voluntary”
provision of counseling and services to low- and moderate-income clients as
disqualifying from a standing perspective. To the contrary, the Court
deemed it as part of the core business purpose of the organization.
        The dissenting opinion states that the Supreme Court in Clapper 110
explained that “‘self-inflicted’ injuries cannot ground Article III

        _____________________
        107
              All. for Hippocratic Med., 

 (quoting Havens Realty, 

).
        108
              See ROA.959-60, ¶ 10 & n.1.
        109
              See post at 108.
        110
              Clapper v. Amnesty Int’l USA, 

 (2013).




                                              22
                                         No. 24-50149


standing.” 111 However, the Supreme Court explained in Clapper that self-
inflicted injuries are not a basis for Article III standing specifically when a
plaintiff has made expenditures based on a feared future occurrence that is
not “certainly impending.” 112 By contrast, here, the harm is certainly
impending.
        The homeseekers in Havens Realty and immigrants in the present case
are essentially consumers for purposes of the analogy in Alliance for
Hippocratic Medicine. HOME was a retailer in the sense that it counseled
homeseekers, while Las Americas is a retailer in the sense that it counsels
immigrants in seeking to assert rights under federal immigration laws. The
manufacturer in Havens Realty was the illegally steering defendant. The
manufacturer in the present case is Director Martin, who would undertake to
enforce preempted state laws to arrest and remove immigrants on a rapid
basis without the opportunity to assert federal rights. Again, the state law is
clear about this,113 as is affidavit evidence. 114
        Although Havens Realty “was an unusual case,” and the Supreme
Court “has been careful not to extend the Havens holding beyond its




        _____________________
        111
              Post at 108.
        112
            Clapper, 

 (“Respondents’ contention that they have standing
because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—
because the harm respondents seek to avoid is not certainly impending. In other words,
respondents cannot manufacture standing merely by inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly impending. Any ongoing
injuries that respondents are suffering are not fairly traceable to [the statute].” (citations
omitted)).
        113
              See Tex. Penal Code § 51.02(a); Tex. Code Crim. Proc. art. 5B.002.
        114
              See ROA.315-16, ¶¶ 5, 9, 15.




                                             23
                                          No. 24-50149


context,” 115 it is not a dead letter, as Alliance for Hippocratic Medicine
confirms.
                                                 B
        A plaintiff must show that “the injury likely was caused or will be
caused by the defendant.” 116 The Supreme Court observed in Alliance for
Hippocratic Medicine that when “a plaintiff challenges the government’s
‘unlawful regulation (or lack of regulation) of someone else,’ ʻstanding is not
precluded, but it is ordinarily substantially more difficult to establish.’” 117
“When the plaintiff is an unregulated party, causation ‘ordinarily hinge[s] on
the response of the regulated (or regulable) third party to the government
action or inaction—and perhaps on the response of others as well.’” 118 “Yet
the Court has said that plaintiffs attempting to show causation generally
cannot ‘rely on speculation about the unfettered choices made by
independent actors not before the courts.’” 119 “[T]o thread the causation
needle in those circumstances, the plaintiff must show that the ‘third parties
will likely react in predictable ways’ that in turn will likely injure the
plaintiffs.” 120 “The causation requirement precludes speculative links—




        _____________________
        115
              FDA v. All. for Hippocratic Med., 

 (2024).
        116
              

.
        117
          

 (alteration in original) (quoting Lujan v. Defs. of Wildlife, 

 (1992)).
        118
              Id. at 383 (alteration in original) (quoting Lujan, 

).
        119
              

 (quoting Clapper v. Amnesty Int’l USA, 

, 415 n.5 (2013)).
        120
              

 (quoting California v. Texas, 

 (2021)).




                                                24
                                      No. 24-50149


that is, where it is not sufficiently predictable how third parties would react
to government action.” 121
        In discussing “alleged future injuries to unregulated parties from
government regulation,” the Supreme Court explained that “the causation
requirement and the imminence element of the injury in fact requirement can
overlap.” 122 That is because “[b]oth target the same issue: Is it likely that
the government’s regulation or lack of regulation of someone else will cause
a concrete and particularized injury in fact to the unregulated plaintiff?” 123
        Texas has enacted new laws that regulate immigrants.                      Those
immigrants are “third parties” or “someone else” for the purposes of the
standing analysis as explained in Alliance for Hippocratic Medicine. There is a
long history in Texas of immigrants illegally entering, reentering, and
remaining in the state. It is entirely predictable, if not virtually certain, that
there will be illegal immigrants in Texas in significant numbers that would be
covered by the new laws. In other words, large numbers of illegal immigrants
will not be motivated to exit the state or refrain from entering or reentering
because of the enactment of the new state laws.
        Then-Director McCraw predicted that DPS would arrest large
numbers of illegal immigrants under the new laws. Director McCraw
testified before the Texas Senate Committee on Border Security that he
estimated immigration enforcement like that required under S. B. 4 may lead




        _____________________
        121
           

 (first citing Allen v. Wright, 

 (1984); and then citing
Simon v. E. Ky. Welfare Rts. Org., 

 (1976)).
        122
              

 at 385 n.2.
        123
              

                                           25
                                    No. 24-50149


to an additional 75,000 to 80,000 arrests per year in Texas. 124 It is highly
unlikely Director McCraw would have testified under oath that his estimate
is 75,000 to 80,000 additional arrests or detentions per year if he instead
thought there might be zero or some relatively small number of arrests.
Given the number of illegal immigrants who reside in the El Paso area or
illegally enter or reenter in that vicinity, it is reasonably predicable, if not
highly probable, that arrests would be made by DPS in the El Paso area at the
direction or under the leadership of the Director.
       This is congruent with the Declaration of Victor Escalon, the Regional
Director for DPS, submitted in the district court proceedings. 125 He averred
that “DPS has responsibility to enforce the criminal laws of the State of
Texas” and that he is “personally familiar with the strategy DPS plans to
deploy to enforce Texas’s recently enacted law, SB 4.” 126 He explained that
“DPS will prioritize enforcement of SB 4 in counties that are close to
facilities operated by TDCJ and the State. DPS expects to house and
process aliens detained under SB 4 primarily in State-owned facilities.” 127
There is a state detention facility in El Paso, the Rogelio Sanchez State Jail,
that has the capacity for 1,100 inmates. 128



       _____________________
       124
           ROA.959-60, ¶ 10 & n.1 (citing Texas Senate Committee on Border Security, at
49:19-50:45 (Nov. 1, 2023), https://senate.texas.gov/videoplayer.php?vid=18888&
lang=en) (statement of Steve McCraw, Director, Tex. Dep’t of Pub. Safety)).
       125
             ROA.314-16.
       126
             ROA.314, ¶ 3.
       127
             ROA.315, ¶ 4.
       128
             See Sanchez (RZ), Tex. Dep’t of Crim. Just., https://www.
tdcj.texas.gov/unit_directory/rz.html [https://perma.cc/86QF-BAUN] (last visited July
3, 2025).




                                          26
                                        No. 24-50149


       As already discussed, the fact that state detainees would be housed in
facilities separate from federal detainees would add to the difficulties Las
Americas would face in representing state detainees in addition to those it
represents who are housed in federal facilities. 129 The difficulty is not only a
geographic one. As noted, Las Americas would have to establish new
contacts and procedures to coordinate with completely separate state
personnel. 130
       In considering the requirement of causation in Alliance for Hippocratic
Medicine, the Supreme Court also explained that “an organization that has
not suffered a concrete injury caused by a defendant’s action cannot spend
its way into standing simply by expending money to gather information and
advocate against the defendant’s action.                     An organization cannot
manufacture its own standing in that way.” 131 The medical associations in
that case had argued “that FDA has ‘caused’ the associations to conduct
their own studies on mifepristone so that the associations can better inform
their members and the public about mifepristone’s risks.” 132 The Supreme
Court held this did not suffice to establish causation of an injury for standing
purposes. 133 The Court also explained that standing is not demonstrated just
because “an organization diverts its resources in response to a defendant’s
actions.” 134 In contrasting what would establish causation of injury, the



       _____________________
       129
             ROA.941-43.
       130
             ROA.943-44.
       131
             FDA v. All. for Hippocratic Med., 

 (2024).
       132
             

       133
             See 

       134
             

.




                                              27
                                         No. 24-50149


Supreme Court again pointed to its decision in Havens Realty. 135 The Court
said, “Critically, HOME not only was an issue-advocacy organization, but
also operated a housing counseling service.” 136
       Las Americas provides legal services to immigrants. That is its core
operation. Its “staff consists of 15 people, including attorneys, accredited
representatives, and paralegals. Two additional staff work in Mexico.” 137 Its
total budget in the fiscal year ending 2023 was approximately $1.4 million. 138
The fact that Las Americas also advocates regarding immigration issues does
not negate the fact that its core operation will be injured by the enforcement
of S. B. 4. As discussed earlier, it gives priority to immigrants who face
imminent removal and are at risk of losing asylum or other relief under federal
immigration laws. 139
       Las Americas has demonstrated that it is likely to suffer injury caused
by the Director enforcement of the new laws enacted under S. B. 4.
                                               C
       Las Americas has also shown that the injury likely would be redressed
by the requested judicial relief. It seeks, and the district court granted, a
preliminary injunction against Director Martin, enjoining him from enforcing
Texas’s new immigration laws.




       _____________________
       135
             

 (citing Havens Realty Corp. v. Coleman, 

 (1982)).
       136
             

 (citing Havens Realty, 

).
       137
             ROA.938, ¶ 16.
       138
             ROA.938, ¶ 15.
       139
             See ROA.937-38, ¶¶ 12-14.




                                               28
                                    No. 24-50149


       DPS, under Director Martin’s leadership, would be the primary arm
of the state making arrests under S. B. 4. 140 The state defendants submitted
a declaration (the Banks declaration) in the district court that said:
       SB 4 will provide law enforcement in Texas, primarily DPS,
       with important new tools to combat the massive influx of illegal
       migration and help stem the tide of illegal migration into Texas.
       When SB 4 is in effect, it will become a highly effective
       component of [Operation Lone Star’s] ongoing efforts to
       combat the crisis at Texas’s southern border. 141
       The Banks declaration explained that Operation Lone Star “utilizes
multiple state and local agencies, including the DPS, TMD [Texas Military
Department], TFC [Texas Facilities Commission], 142 and others to stem the
flow of unlawful immigration.” 143 However, as discussed above, it is DPS,
led by Director Martin, who will prioritize where to concentrate its arrest
efforts. 144 The Escalon declaration says that DPS intends to “prioritize
enforcement of SB 4 in counties that are close to facilities operated by TDCJ
and the State.” 145 Such a facility exists in El Paso.
       It is unlikely that the state will rely on the District Attorney who serves
the El Paso area to take the lead, or virtually any role, in making arrests under
the new state immigration laws. That is because the District Attorney is a

       _____________________
       140
           ROA.288, ¶ 35 (Declaration of Michael Banks, Deputy Director, Border Czar,
Office of Texas Governor Greg Abbott).
       141
             ROA.288, ¶ 35.
       142
             ROA.282, ¶ 9.
       143
             ROA.286, ¶ 27.
       144
         See ROA.315, ¶ 4 (Declaration of Victor Escalon, Regional Director, Texas
Department of Public Safety).
       145
             ROA.315, ¶ 4.




                                         29
                                          No. 24-50149


defendant in this litigation, and he was enjoined from enforcing the new
immigration laws by the district court. Though he initially appealed, he
dismissed that appeal. He remains subject to the injunction. It appears that
he will not seek to uphold the constitutionality of the new laws or enforce
them.
                                            * * *
        Las Americas has likely established each element of standing.
                                               III
        Director Martin is represented by the same counsel as the State of
Texas and other state defendants. The Director did not file a separate brief.
We considered the arguments raised in that briefing in our decision denying
a stay of the preliminary injunction. 146 Director Martin is the only remaining
appellant.
        Before we reach the merits, we consider a second jurisdictional issue.
In the district court, the Director suggested that this case presents a
nonjusticiable political question. 147 The Director likewise gestures toward
that argument before our court. Regardless of whether that sufficed to
preserve the issue, 148 the political question doctrine is a “jurisdictional
limitation[] imposed upon federal courts by the ‘case or controversy’
requirement of Art. III.” 149 “Unlike most arguments, challenges to subject-
        _____________________
        146
              See generally United States v. Texas, 

 (5th Cir. 2024).
        147
              ROA.236.
        148
           See Rollins v. Home Depot USA, Inc., 

 (5th Cir. 2021) (explaining
that a party can forfeit an argument “by failing to adequately brief the argument on
appeal”).
        149
         Schlesinger v. Reservists Comm. to Stop the War, 

 (1974); see also
DaimlerChrysler Corp. v. Cuno, 

 (2006) (“The doctrines of mootness,




                                                30
                                          No. 24-50149


matter jurisdiction” must be considered by courts “sua sponte.” 150
Accordingly, we consider whether this case presents a nonjusticiable political
question.
        “Chief Justice Marshall famously wrote that it is ‘the
province and duty of the judicial department to say what the law is.’” 151
“Sometimes, however, ‘the law is that the judicial department has no
business entertaining the claim of unlawfulness—because the question is
entrusted to one of the political branches or involves no judicially enforceable
rights.’” 152 “In such a case the claim is said to present a ‘political question’
and to be nonjusticiable—outside the courts’ competence and therefore
beyond the courts’ jurisdiction.” 153 A controversy involves a nonjusticiable
political question “where there is ‘a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it.’” 154
        As discussed further below, Director Martin contends that S. B. 4 is a
lawful exercise of the authority of the state of Texas under Article I, § 10 of



        _____________________
ripeness, and political question all originate in Article III’s ‘case’ or ‘controversy’
language, no less than standing does.”); Lane v. Halliburton, 

 (5th Cir.
2008) (“[T]he political question doctrine implicates the district court’s jurisdiction.”).
        150
              Fort Bend County v. Davis, 

 (2019) (italics omitted).
        151
           Rucho v. Common Cause, 

 (2019) (quoting Marbury v. Madison,

 (1803)).
        152
              

 at 695-96 (quoting Vieth v. Jubelirer, 

 (2004) (plurality
opinion)).
        153
              

 at 696 (quoting Baker v. Carr, 

 (1962)).
        154
              Nixon v. United States, 

 (1993) (quoting Baker, 

).




                                                31
                                          No. 24-50149


the Constitution. The relevant portion of that provision, the State War
Clause, provides:
        No State shall, without the Consent of Congress, lay any Duty
        of Tonnage, keep Troops, or Ships of War in time of Peace,
        enter into any Agreement or Compact with another State, or
        with a foreign Power, or engage in War, unless actually
        invaded, or in such imminent Danger as will not admit of
        delay. 155
There is some caselaw supporting the proposition that whether Texas has
been “actually invaded” or is “in such imminent Danger as will not admit of
delay” is nonjusticiable. 156 The Supreme Court has recognized that the
Texas Governor “is appropriately vested with the discretion to determine
whether an exigency requiring military aid for that purpose has arisen,” and
that the Governor’s “decision to that effect is conclusive.” 157
        Still, the Supreme Court’s cases make clear that we have jurisdiction
to resolve this dispute. For example, in Zivotofsky ex rel. Zivotofsky v.
Clinton, 158 the Court explained that evaluating the constitutionality of
statutes is firmly within the bailiwick of the judiciary, even if an unreviewable
        _____________________
        155
              U.S. Const. art. I, § 10, cl. 3.
        156
           See, e.g., California v. United States, 

 (9th Cir. 1997) (holding
that a claim there has been an invasion within the meaning of Article IV, § 4 “implicates
foreign policy concerns which have been constitutionally committed to the political
branches”); Chiles v. United States, 

 (11th Cir. 1995) (“[W]e conclude
that whether the level of illegal immigration is an ‘invasion’ of Florida [within the meaning
of Article IV, § 4] and whether this level violates the guarantee of a republican form of
government present nonjusticiable political questions.”); see also Padavan v. United States,

 (2d Cir. 1996) (holding, in the alternative, that a claim that the United States
failed to protect a state from an invasion within the meaning of Article IV, § 4 is
nonjusticiable).
        157
              Sterling v. Constantin, 

 (1932).
        158
              

 (2012).




                                                 32
                                             No. 24-50149


political determination exists somewhere in the case. 159 In Zivotofsky, a
federal statute required that certain official documents for U.S. citizens born
in Jerusalem record the place of birth as Israel. 160 But the State Department
refused to specify “Israel” on a U.S. citizen’s official documents that
reflected Jerusalem as his place of birth. 161 The district court and the D.C.
Circuit held that the resulting case presented a nonjusticiable political
question. 162 The Supreme Court reversed. 163 The Court explained:
        The federal courts are not being asked to supplant a foreign
        policy decision of the political branches with the courts’ own
        unmoored determination of what United States policy toward
        Jerusalem should be. Instead, Zivotofsky requests that the
        courts enforce a specific statutory right. To resolve his claim,
        the Judiciary must decide if Zivotofsky’s interpretation of the
        statute is correct, and whether the statute is constitutional.
        This is a familiar judicial exercise. 164
The Court sketched the relevant constitutional inquiry:
        In this case, determining the constitutionality of [the statute]
        involves deciding whether [it] impermissibly intrudes upon
        Presidential powers under the Constitution. If so, the law must
        be invalidated and Zivotofsky’s case should be dismissed for
        failure to state a claim. If, on the other hand, the statute does
        not trench on the President’s powers, then the Secretary must

        _____________________
        159
            See also Baker, 

 n.43 (discussing Cherokee Nation v. Georgia, 

 (1831), as “a noteworthy example of the limited and precise impact of a
political question” when the case otherwise came in a justiciable form).
        160
              Zivotofsky, 

.
        161
              

.
        162
              

.
        163
              

.
        164
              

.




                                                  33
                                    No. 24-50149


       be ordered to issue Zivotofsky a passport that complies with
       [the statute]. Either way, the political question doctrine is not
       implicated. 165
       Our task in this case involves a similarly familiar judicial exercise. Las
Americas claims that S. B. 4 may not be constitutionally enforced because it
is preempted by federal law. One of the reasons Director Martin contends
that S. B. 4 may lawfully be enforced is because the statute is authorized
under the State War Clause.          Examining “the textual, structural, and
historical evidence put forward by the parties regarding the nature of” the
relevant powers “is what courts do.” 166
       The military aspect of the State War Clause power relied upon by the
Director does not disrupt this usual order. In Sterling v. Constantin, 167 the
Supreme Court reviewed an injunction against the Governor of Texas, which
enjoined him from limiting oil production despite the Governor having done
so to prevent insurrection. 168 The Governor had issued a proclamation
stating that certain Texas counties were in a state of insurrection, and he
directed the Texas National Guard to limit production of oil in those
counties. 169      Oil-leasehold owners sued, alleging, among other things,
violations of the Due Process Clause. 170 The Governor argued that the
judiciary “was powerless thus to intervene, and that the Governor’s order
had the quality of a supreme and unchallengeable edict, overriding all


       _____________________
       165
             

       166
             

.
       167
             

 (1932).
       168
             

.
       169
             

.
       170
             

.




                                        34
                                          No. 24-50149


conflicting rights of property and unreviewable through the judicial power of
the federal government.” 171 The Supreme Court disagreed, explaining:
       If this extreme position could be deemed to be well taken, it is
       manifest that the fiat of a state Governor, and not the
       Constitution of the United States, would be the supreme law of
       the land; that the restrictions of the Federal Constitution upon
       the exercise of state power would be but impotent phrases, the
       futility of which the state may at any time disclose by the simple
       process of transferring powers of legislation to the Governor to
       be exercised by him, beyond control, upon his assertion of
       necessity. 172
Instead, the Court said, a state’s wide discretion during times of military
exigency does not mean “that every sort of action the Governor may take, no
matter how unjustified by the exigency or subversive of private right and the
jurisdiction of the courts, otherwise available, is conclusively supported by
mere executive fiat.” 173 The Court remarked that it was “well established”
that “the allowable limits of military discretion, and whether or not they have
been overstepped in a particular case, are judicial questions.” 174
       Accordingly, we see no reason to conclude that this case is
nonjusticiable. This case calls us to evaluate the claim that S. B. 4 is
unenforceable under the Supremacy Clause and also to consider Director
Martin’s contrary invocation of the State War Clause. These questions of
constitutional interpretation are “a familiar judicial exercise.” 175

       _____________________
       171
             

.
       172
             

.
       173
             

.
       174
             

.
       175
             See Zivotofsky ex rel. Zivotofsky v. Clinton, 

 (2012).




                                                35
                                           No. 24-50149


                                                IV
        We come to the merits of this appeal. “A preliminary injunction is an
extraordinary remedy never awarded as of right.” 176 A party seeking a
preliminary injunction “must establish [1] that he is likely to succeed on the
merits, [2] that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” 177 In deciding whether to issue such
relief, “courts ‘must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the
requested relief.’” 178 “The purpose of such interim equitable relief is not to
conclusively determine the rights of the parties, but to balance the equities as
the litigation moves forward.” 179
        We review the district court’s grant of a preliminary injunction for
abuse of discretion. 180 A district court abuses its discretion when it bases its
decision on errors of law or clearly erroneous factual determinations. 181 We
review conclusions of law de novo and findings of fact for clear error. 182


        _____________________
        176
           Winter v. Nat. Res. Def. Council, Inc., 

 (2008) (citing Munaf v.
Geren, 

 (2008)).
        177
              Id. at 20.
        178
              Id. at 24 (quoting Amoco Prod. Co. v. Village of Gambell, 

 (1987)).
        179
           Trump v. Int’l Refugee Assistance Project, 

, 580 (2017) (per curiam)
(citation omitted) (citing Univ. of Tex. v. Camenisch, 

 (1981)).
        180
           See Benisek v. Lamone, 

 (2018) (per curiam); see also Planned
Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs., Inc. v. Kauffman, 

 (5th Cir. 2020) (en banc).
        181
           See Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 

 (5th
Cir. 2018).
        182
              See Kauffman, 

.




                                                 36
                                          No. 24-50149


                                                V
       The first question is the likelihood of success on the merits. Our
discussion proceeds in four parts. First, we consider whether the Eleventh
Amendment bars Las Americas’s claims against Director Martin and
whether Las Americas has a cause of action to pursue its challenge. Second,
we discuss the scope of the facial challenge inquiry. Third, we analyze
whether federal law likely preempts S. B. 4. Fourth, we assess Director
Martin’s argument that S. B. 4’s application to transnational cartel members
is a constitutionally authorized response to an “invasion.”
                                                A
                                                1
       Director Martin asserts that Las Americas’s claims are barred by
sovereign immunity. It maintains that the claims do not come within the Ex
parte Young 183 exception to sovereign immunity.
       “As an exception to the general rule of state sovereign immunity, Ex
parte Young permits plaintiffs to sue a state officer in his official capacity for
an injunction to stop ongoing violations of federal law.” 184 “The officer sued
must have ‘some connection with the enforcement of the [challenged]
act.’” 185 The required “connection,” our circuit has recognized, can be




       _____________________
       183
             

 (1908).
       184
           Nat’l Press Photographers Ass’n v. McCraw, 

 (5th Cir. 2024)
(quoting Lewis v. Scott, 

 (5th Cir. 2022)).
       185
             

 (alteration in original) (quoting Lewis, 

).




                                                37
                                           No. 24-50149


difficult to articulate. 186 Regardless, several “guideposts” aid our analysis.187
“[T]he official must have ‘the particular duty to enforce the statute in
question and a demonstrated willingness to exercise that duty.’” 188 “A
history of prior enforcement is not required, especially in the pre-
enforcement context that applies here.” 189 “Nevertheless,” Las Americas
“must allege some action taken by [Director Martin] to show a demonstrated
willingness to enforce.” 190 Additionally, an official “must have more than
‘the general duty to see that the laws of the state are implemented.’” 191
Furthermore, an official must be able to “compel or constrain” obeyance of
the challenged law. 192



          _____________________
          186
           See Healthy Vision Ass’n v. Abbott, 

 (5th Cir. 2025) (“[O]ur
decisions are not a model of clarity on what constitutes a sufficient connection to
enforcement.” (alteration in original) (quoting Mi Familia Vota v. Ogg, 

(5th Cir. 2024))); Lewis, 

 (“[O]ur circuit has struggled to define this
‘connection’ requirement . . . .”); Tex. All. for Retired Ams. v. Scott (TARA), 

 (5th Cir. 2022) (“How much of a ‘connection’ has been hard to pin down, though.”);
Tex. Democratic Party v. Abbott (TDP II), 

 (5th Cir. 2020) (“This circuit
has not spoken with conviction about all relevant details of the ‘connection’
requirement.”).
          187
                TARA, 28 F.4th at 672.
          188
                Id. (quoting TDP II, 

).
          189
            Mi Familia Vota, 

 (citing Calhoun v. Collier, 

(5th Cir. 2023)).
          190
                

 (citing Tex. Democratic Party v. Abbott (TDP I), 

 (5th Cir.
2020)).
          191
           TARA, 28 F.4th at 672 (quoting City of Austin v. Paxton, 

(5th Cir. 2019)).
          192
           

 (“‘[E]nforcement’ means ‘compulsion or constraint.’ If the official does not
compel or constrain anyone to obey the challenged law, enjoining that official could not
stop any ongoing constitutional violation.” (citation omitted) (quoting City of Austin, 

)).




                                                 38
                                         No. 24-50149


        These requirements are met as to Director Martin as the Director of
DPS. We recently held that the DPS Director has “more than just the
general duty to see that the state’s laws are implemented—[he is] directly
responsible for enforcing Texas’s criminal laws.” 193 Moreover, we stated
DPS officers “arrest people for violating Texas law, exercising ‘compulsion
or constraint’ in service of the law.” 194 Finally, there is direct evidence from
state officials that DPS, under the direction of the Director, will make arrests
and detain immigrants to enforce Texas’s new immigration laws. 195 As
already noted, then-Director McCraw himself testified before a Texas
legislative committee that S. B. 4 may lead to an additional 75,000 to 80,000
arrests per year in Texas. 196 Accordingly, the Director has demonstrated a
willingness to enforce the new immigration laws and is not entitled to
sovereign immunity.
        The Supreme Court has clearly stated, “[I]n determining whether the
doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court
need only conduct a ‘straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.’” 197                 Las Americas has satisfied that



        _____________________
        193
              Nat’l Press Photographers Ass’n v. McCraw, 

 (5th Cir. 2024).
        194
              

 (quoting TARA, 28 F.4th at 672).
        195
              See supra notes 124-27 and accompanying text.
        196
           ROA.959-60, ¶ 10 & n.1 (citing Texas Senate Committee on Border Security, at
49:19-50:45 (Nov. 1, 2023), https://senate.texas.gov/videoplayer.php?vid=18888&
lang=en) (statement of Steve McCraw, Director, Tex. Dep’t of Pub. Safety)).
        197
           Va. Off. for Prot. & Advoc. v. Stewart, 

, 255 (2011) (second alteration
in original) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 

(2002)).




                                               39
                                         No. 24-50149


requirement in its complaint and by evidence presented during the
preliminary injunction proceedings.
        Director Martin asserts that “no Texas official will enforce any part
of this law against” Las Americas, so it cannot “avail itself of Ex Parte
Young” to overcome sovereign immunity. But Director Martin has pointed
to no holding that Ex parte Young suits must fail when the challenged law will
not be enforced against the plaintiff. Indeed, the Supreme Court and our
court have permitted many plaintiffs to overcome sovereign immunity based
on Ex parte Young even when the challenged law is not being, or will not be,
enforced directly against the plaintiff itself. 198
                                                2
        Director Martin also contends that Las Americas lacks a cause of
action to pursue its claim. The Director appears to advance two arguments
in support. First, in his motion for a stay pending appeal, the Director argued
that Las Americas lacks an equitable cause of action because it does “not
allege enforcement of S.B. 4 threatens imminent legal proceedings against”
it and it has not “sued any official who may potentially enforce the law
against” it. It is unclear whether the Director continues to rely on this
argument in connection with his cause-of-action contention in the merits
briefing. Instead, the Director’s merits briefing seemingly limits this “wrong
        _____________________
        198
             See, e.g., id. at 255-57 (suit by independent state agency to obtain records from
another state agency); Green Valley Special Util. Dist. v. City of Schertz, 

, 471-
73 (5th Cir. 2020) (en banc) (suit by a utility district to prevent state officials from, inter
alia, certifying other water- or wastewater-service entities); TDP II, 

(5th Cir. 2020) (suit by, inter alia, a political party arguing that limitations on mail-in-voting
were unconstitutional); see also Book People, Inc. v. Wong, 

 (5th Cir. 2024)
(“[T]he same type of direct enforcement found in Ex [p]arte Young, for instance, where the
attorney general threatened civil and criminal prosecution . . . is not required.” (quoting
Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 

 (5th Cir.
2017))).




                                               40
                                             No. 24-50149


plaintiff” argument to the sovereign immunity issue, as discussed above,
rather than the cause-of-action issue. But to the extent that Director Martin
maintains the argument that this characteristic of Las Americas’s suit
undermines its cause of action, that argument likewise fails. The Supreme
Court has on multiple occasions allowed actions in equity to proceed based
on Ex parte Young even when the government was not enforcing the
challenged law directly against the plaintiff.
       The Supreme Court’s decision in Truax v. Raich 199 is one example.
Arizona had enacted a law that made it a crime for most businesses to employ
a workforce consisting of less than eighty percent “qualified electors or
native-born citizens of the United States.” 200 Truax, a restaurant owner, told
his employee Raich, a native of Austria, he would be fired because of the new
law. 201 Raich filed a suit in equity against Truax, as well as Arizona’s attorney
general and a county attorney, seeking “a decree declaring the act to be
unconstitutional and restraining action thereunder.” 202 The defendants
objected “that the complainant cannot sue save to redress his own grievance;
that is, that the servant cannot complain for the master, and that it is the
master who is subject to prosecution, and not the complainant.” 203 The
Supreme Court rejected this argument, concluding that the injury caused by
the law would be felt by employees like Raich. 204 The Court said:
       It is, therefore, idle to call the injury indirect or remote. It is
       also entirely clear that unless the enforcement of the act is
       _____________________
       199
             

 (1915).
       200
             

.
       201
             

.
       202
             

       203
             

 (citation omitted).
       204
             

.




                                                  41
                                    No. 24-50149


       restrained the complainant will have no adequate remedy, and
       hence we think that the case falls within the class in which, if
       the unconstitutionality of the act is shown, equitable relief may
       be had. 205
       The same reasoning prevailed in Pierce v. Society of the Sisters of the
Holy Names of Jesus and Mary. 206 There, Oregon had imposed criminal
penalties on persons who had charge of a child and who “fail[ed] or
neglect[ed] or refuse[d] to send such child to a public school.” 207 Religious
corporations that owned or operated private schools sued the Governor of
Oregon in equity alleging that the law violated the Fourteenth
Amendment. 208 The Supreme Court acknowledged that the plaintiffs, as
corporations, “cannot claim for themselves the liberty which the Fourteenth
Amendment guarantees.” 209 Yet, citing Truax, the Court reached the merits
because the corporations alleged that the law would cause them to shutter
their schools. 210 It was no obstacle that the Oregon law imposed penalties on
children’s custodians, not on schools. So too, here, the fact that Director
Martin will not enforce S. B. 4 against Las Americas does not disenable it
from suing in equity to challenge the law.
       Second, Director Martin argues that Las Americas lacks a cause of
action because Las Americas “alleges only a cause of action under the
Supremacy Clause.” As the Director points out, the Supreme Court held in


       _____________________
       205
             

.
       206
             

 (1925).
       207
             

 at 530 n.1.
       208
             See 

.
       209
             

.
       210
             

                                        42
                                            No. 24-50149


Armstrong v. Exceptional Child Center, Inc. 211 that the Supremacy Clause
“does not create a cause of action.” 212 Director Martin argues that Las
Americas must identify a statute containing “‘“rights-creating” language’
permitting [its] suit” but has not done so, making its suit “a nullity.” 213
        The Director misunderstands both Las Americas’s suit and the
Supreme Court’s analysis in Armstrong. Las Americas can sue in equity to
enjoin an allegedly preempted state law. Even if a statute “does not confer a
private right, a plaintiff is not prevented from gaining equitable relief on
preemption grounds.” 214 “The ‘ability to sue to enjoin unconstitutional
actions by state and federal officers is the creation of courts of equity.’” 215
        The Armstrong decision itself exemplifies the existence of a
preemption cause of action in equity. There, the Supreme Court held the
Supremacy Clause “certainly does not create a cause of action. It instructs
courts what to do when state and federal law clash, but is silent regarding who
may enforce federal laws in court, and in what circumstances they may do
so.” 216 The Court explained, “[t]he ability to sue to enjoin unconstitutional

        _____________________
        211
              

 (2015).
        212
              

.
        213
              See Alexander v. Sandoval, 

 (2001).
        214
            Crown Castle Fiber, L.L.C. v. City of Pasadena, 

 (5th Cir.
2023); see also Richard H. Fallon, Jr., et al., Hart and Wechsler’s the
Federal Courts and the Federal System 845 (7th ed. 2015) (“[T]he rule that
there is an implied right of action to enjoin state or local regulation that is preempted by a
federal statutory or constitutional provision . . . long appeared to be well-established.”).
        215
           Crown Castle Fiber, 

 (quoting Armstrong, 

); see also
Green Valley Special Util. Dist. v. City of Schertz, 

 (5th Cir. 2020) (en banc)
(holding that the plaintiff “has a cause of action against [state officials] at equity, regardless
of whether it can invoke § 1983”).
        216
              Armstrong, 

.




                                                43
                                        No. 24-50149


actions . . . is the creation of courts of equity, and reflects a long history of
judicial review of illegal executive action, tracing back to England.” 217 “It is
a judge-made remedy.” 218 Accordingly, despite rejecting the argument that
the plaintiffs in that case could assert a cause of action under the Supremacy
Clause, the remainder of the Armstrong opinion analyzed whether the
plaintiffs’ preemption claim could “proceed against Idaho in equity.” 219 The
Court accepted that “equitable relief . . . is traditionally available to enforce
federal law,” but it ultimately held that Congress had displaced the Armstrong
plaintiffs’ equitable cause of action in that case by enacting the Medicaid
Act. 220 Given the absence of such displacement here, as the district court
recognized, 221 Las Americas may proceed against Director Martin in equity.
       Finally, we disagree with the dissenting opinion’s contention that Las
Americas lacks an equitable cause of action because enforcement of S. B. 4
will not invade its legal rights. 222 Neither Director Martin nor Las Americas
addressed this issue in their briefing, so we lack a fulsome response from the
parties about this alleged deficiency in Las Americas’s case. The Supreme
Court, however, said the following about the schools’ suit in Pierce:
       Generally, it is entirely true, as urged by counsel, that no
       person in any business has such an interest in possible
       customers as to enable him to restrain exercise of proper power
       of the state upon the ground that he will be deprived of
       patronage. But the injunctions here sought are not against the

       _____________________
       217
             

.
       218
             

       219
             

       220
             

.
       221
             See United States v. Texas, 

, 661-62 (W.D. Tex. 2024).
       222
             See post at 141-42.




                                             44
                                        No. 24-50149


        exercise of any proper power. Appellees asked protection
        against arbitrary, unreasonable, and unlawful interference with
        their patrons and the consequent destruction of their business
        and property. Their interest is clear and immediate, within the
        rule approved in Truax v. Raich, Truax v. Corrigan,[223] and
        Terrace v. Thompson,[224] and many other cases where
        injunctions have issued to protect business enterprises against
        interference with the freedom of patrons or customers. 225
Given the parallels between the patrons in Pierce and the immigrant-clients
in this case, as well as Texas’s improper exercise of power, we can readily
imagine Las Americas successfully articulating a similar argument here. At
this early stage of the litigation, no more is necessary.
                                              B
        We must determine what the plaintiff must show to prevail on this
facial challenge. “[A] plaintiff bringing a facial challenge must ‘establish that
no set of circumstances exists under which the [law] would be valid,’ or show
that the law lacks ‘a plainly legitimate sweep.’” 226 Director Martin contends
that this standard means the preliminary injunction must be vacated if there
is a single hypothetical application of S. B. 4 that may be legitimately
enforced.



        _____________________
        223
              

 (1921).
        224
              

 (1923).
        225
           Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 

, 535-
36 (1925) (citation omitted).
        226
            Ams. for Prosperity Found. v. Bonta, 

 (2021) (second alteration
in original) (citations omitted) (first quoting United States v. Salerno, 

(1987); and then quoting Wash. State Grange v. Wash. State Republican Party, 

 (2008)).




                                              45
                                            No. 24-50149


          Of course, if a law intrudes on a field occupied by Congress, every
application of that law is preempted. 227 That is because “[w]here Congress
occupies an entire field, . . . even complementary state regulation is
impermissible.” 228 The dissenting opinion points to the Supreme Court’s
decision in Moody v. NetChoice, LLP, 229 for the proposition that “in all cases
outside the First Amendment, courts must apply United States v. Salerno.” 230
However, Moody was not a preemption case, and it did not consider how, as
a matter of logic, Salerno could apply when every application of a law in a field
occupied by Congress is preempted.
          Field preemption aside, it is not clear-cut that Director Martin’s
standard, based on Salerno, is correct. Some of our sister circuits have
expressed uncertainty about whether the Salerno standard—that a plaintiff
must “establish that no set of circumstances exists under which the [law]
would be valid” 231—applies in the preemption context. 232 Those circuits
have further reasoned that even if the Salerno standard applies, positing a


          _____________________
          227
            See Cal. Coastal Comm’n v. Granite Rock Co., 

 (1987)
(explaining that “[i]f the Federal Government occupied the field of environmental
regulation of unpatented mining claims in national forests,” state environmental regulation
would be preempted regardless of their form).
          228
                Arizona v. United States, 

 (2012).
          229
                

 (2024).
          230
                Post at 159 (citing Moody, U.S. at 723); see United States v. Salerno, 

(1987).
          231
                Salerno, 

.
          232
           See, e.g., Club Madonna Inc. v. City of Mia. Beach, 

 (11th Cir.
2022); League of Women Voters of Ind., Inc. v. Sullivan, 

 (7th Cir. 2021);
United States v. Sup. Ct. of N.M., 

 (10th Cir. 2016); Lozano v. City of
Hazelton, 

, 313 n.22 (3d Cir. 2013). But see Puente Ariz. v. Arpaio, 

, 1104 n.6 (9th Cir. 2016).




                                                  46
                                        No. 24-50149


hypothetical non-preempted application is not sufficient to defeat a facial
preemption challenge. 233
        We see support for our sister circuits’ interpretation in the Supreme
Court’s cases. The Court has vindicated facial preemption challenges
despite possible non-preempted applications. 234 However, in a much earlier
decision, the Court held that to defeat a facial challenge in which it was
asserted that the federal regulation “per se” preempted state regulation, the
state governmental authority “needed merely to identify a possible set of
permit conditions not in conflict with federal law.” 235 Ultimately, however,
we need not take a side in this debate. For the reasons we discuss below, Las
Americas has likely shown there are no non-preempted applications of
Texas’s new immigration laws.
        Before turning to that analysis, we discuss two important limits on the
scope of the facial challenge inquiry. First, in City of Los Angeles v. Patel, 236
the Supreme Court explained that a court’s assessment of a facial challenge
is limited to a law’s applications that are not already legitimately authorized
by other laws. The Patel decision concerned a facial challenge to a Los
Angeles ordinance that compelled “‘[e]very operator of a hotel to keep a
        _____________________
        233
           See, e.g., Club Madonna, 

; Sullivan, 

; Sup. Ct.,

; Lozano, 

 n.22. But see Metro PCS Cal., LLC v. Picker, 

 (9th Cir. 2020).
        234
            See Arizona v. United States, 

 (2012) (holding a state law
provision was facially conflict preempted without asking whether there were applications
of the provision that would be consistent with federal law or citing Salerno); see also 

 (Alito, J., concurring in part and dissenting in part) (dissenting in part on the
basis that “[t]he point is that there are plenty of permissible applications of § 6” and citing
Salerno, contending the United States did not show there was no set of circumstances under
which the statute would be valid).
        235
              Cal. Coastal Comm’n v. Granite Rock Co., 

 (1987).
        236
              

 (2015).




                                              47
                                    No. 24-50149


record’ containing specified information concerning guests and to make this
record ‘available to any officer of the Los Angeles Police Department for
inspection’ on demand.” 237 Los Angeles argued that “facial challenges to
statutes authorizing warrantless searches must fail because such searches will
never be unconstitutional in all applications.” 238           The Supreme Court
remarked that Los Angeles misunderstood how courts analyze facial
challenges. 239 The Court said:
       Under the most exacting standard the Court has prescribed for
       facial challenges, a plaintiff must establish that a “law is
       unconstitutional in all of its applications.” But when assessing
       whether a statute meets this standard, the Court has
       considered only applications of the statute in which it actually
       authorizes or prohibits conduct. 240
       The Patel decision reasoned: “Similarly, when addressing a facial
challenge to a statute authorizing warrantless searches, the proper focus of
the constitutional inquiry is searches that the law actually authorizes, not
those for which it is irrelevant.” 241 The Court further rejected the argument
that “a statute authorizing warrantless searches may still have independent
force if it imposes a penalty for failing to cooperate in a search conducted
under a warrant or in an exigency.” 242 The Court explained that “[t]his
argument gets things backwards. An otherwise facially unconstitutional
       _____________________
       237
           Id. at 412 (alteration in original) (quoting L.A., 

(2), (3)(a), (4) (2015)).
       238
             Id. at 417.
       239
             Id. at 418.
       240
           Id. (citation omitted) (quoting Wash. State Grange v. Wash. State Republican
Party, 

 (2008)).
       241
             

       242
             

 at 419 n.1.




                                          48
                                          No. 24-50149


statute cannot be saved from invalidation based solely on the existence of a
penalty provision that applies when searches are not actually authorized by
the statute.” 243 Patel teaches that, in resolving a facial challenge, the relevant
universe of applications are those not already authorized by other laws—even
if the challenged law imposes a new penalty.
        Second, in Whole Woman’s Health v. Hellerstedt,244 the Supreme
Court explained that a robust severability clause is not sufficient to save an
otherwise unconstitutional law. Of course, Hellerstedt, which held that a
Texas law was facially unconstitutional because it imposed an undue burden
on the ability to obtain an abortion, has been largely abrogated by Dobbs v.
Jackson Women’s Health Organization. 245 Nevertheless, the Court’s analysis
of the law’s severability clause was not abrogated by Dobbs and remains good
law.
        After holding the law was unconstitutional, Hellerstedt turned to
Texas’s arguments against facial invalidation. Texas argued that “facial
invalidation of both challenged provisions is precluded by H.B. 2’s
severability clause.” 246 That severability clause was substantially identical to
S. B. 4’s severability clause in this case. 247             The severability clause in
Hellerstedt stated that “every provision, section, subsection, sentence,
        _____________________
        243
              Id.
        244
           

 (2016), abrogated by, Dobbs v. Jackson Women’s Health Org., 

 (2022).
        245
              

 (2022).
        246
              Hellerstedt, 579 U.S. at 624.
        247
           S. B. 4’s severability clause reads: “It is the intent of the legislature that every
provision, section, subsection, sentence, clause, phrase, or word in this Act, and every
application of the provisions in this Act to every person, group of persons, or
circumstances, is severable from each other.” S. B. 4, 88th Leg., 4th Called Sess., § 8 (Tex.
2023).




                                              49
                                 No. 24-50149


clause, phrase, or word in this Act, and every application of the provision in
this Act, are severable from each other.” 248 It further provided that if “any
application of any provision in this Act to any person, group of persons, or
circumstances is found by a court to be invalid, the remaining applications of
that provision to all other persons and circumstances shall be severed and
may not be affected.” 249 The Court rejected the idea that the severability
clause precluded facial invalidation. It reiterated its reasons for holding that
the statute imposed an undue burden and stated, “The provisions are
unconstitutional on their face: Including a severability provision in the law
does not change that conclusion.” 250
       Significantly, the Court explained:
       Severability clauses, it is true, do express the enacting
       legislature’s preference for a narrow judicial remedy. As a
       general matter, we attempt to honor that preference. But our
       cases have never required us to proceed application by
       conceivable application when confronted with a facially
       unconstitutional statutory provision. “We have held that a
       severability clause is an aid merely; not an inexorable
       command.” Reno v. American Civil Liberties Union, [

, 884 n.49] (1997) (internal quotation marks omitted).
       Indeed, if a severability clause could impose such a
       requirement on courts, legislatures would easily be able to
       insulate unconstitutional statutes from most facial review. See
       

 (“It would certainly be dangerous if the legislature could
       set a net large enough to catch all possible offenders, and leave
       it to the courts to step inside and say who could be rightfully
       detained, and who should be set at large. This would, to some

       _____________________
       248
             579 U.S. at 624.
       249
             Id.
       250
             Id. at 624-25.




                                        50
                                        No. 24-50149


        extent, substitute the judicial for the legislative department of
        the government” (internal quotation marks omitted)). A
        severability clause is not grounds for a court to “devise a
        judicial remedy that . . . entail[s] quintessentially legislative
        work.” Ayotte v. Planned Parenthood of Northern New Eng., [

, 329] (2006). Such an approach would inflict
        enormous costs on both courts and litigants, who would be
        required to proceed in this manner whenever a single
        application of a law might be valid. We reject Texas’ invitation
        to pave the way for legislatures to immunize their statutes from
        facial review. 251
        The Court concluded that “Texas’ attempt to broadly draft a
requirement to sever ‘applications’ does not require us to proceed in
piecemeal fashion when we have found the statutory provisions at issue
facially unconstitutional.” 252
        We proceed with our preemption analysis with these limitations in
mind.
                                             C
        The Supremacy Clause makes the laws of the United States “the
supreme Law of the Land; . . . any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.” 253 The Clause declares a simple
truth, “which flows immediately and necessarily from the institution of a
federal government”—that federal law preempts contrary state law. 254 In
doing so, the Clause serves as a cornerstone of our system of federalism,
        _____________________
        251
              Id. at 625.
        252
              Id. at 626.
        253
              U.S. Const. art. VI, cl. 2.
        254
              The Federalist No. 33, at 205 (Alexander Hamilton) (Clinton Rossiter
ed., 1961).




                                             51
                                         No. 24-50149


providing the federal government with a “decided advantage” to “impose its
will on the States.” 255
       Under the doctrine of preemption, Congress may displace state law
expressly by using explicit language in a federal statute. 256 In such a case,
“the courts’ task is an easy one.” 257 We focus on the “plain wording” of the
preemption language to determine the preemptive effect of the statute. 258
However, Congress does not always make its intent readily apparent. In the
absence of an explicit preemption clause, congressional intent may be
inferred “from a framework of regulation ‘so pervasive . . . that Congress left
no room for the States to supplement it’ or where there is a ‘federal
interest . . . so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject.’” 259 We refer to this doctrine
as field preemption.
       Federal law also “naturally preempt[s]” state law to the extent the
state law conflicts with a federal statute. 260 “This includes cases where
‘compliance with both federal and state regulations is a physical
impossibility,’ and those instances where the challenged state law ‘stands as




       _____________________
       255
             Gregory v. Ashcroft, 

 (1991).
       256
             See, e.g., CSX Transp., Inc. v. Easterwood, 

 (1993).
       257
             Eng. v. Gen. Elec. Co., 

 (1990).
       258
            Chamber of Com. of U.S. v. Whiting, 

 (2011) (quoting CSX
Transp., Inc., 

).
       259
           Arizona v. United States, 

 (2012) (quoting Rice v. Santa Fe
Elevator Corp., 

 (1947)).
       260
             Crosby v. Nat’l Foreign Trade Council, 

 (2000).




                                               52
                                        No. 24-50149


an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.’” 261 We refer to this doctrine as conflict preemption.
        It is undisputed that Congress has not explicitly preempted S. B. 4 by
including specific language in any of its enactments governing the entry and
removal of aliens. Instead, the plaintiffs contend S. B. 4 is both field and
conflict preempted by federal law. In light of these concerns, Las Americas
brought a facial challenge to enjoin the enforcement of S. B. 4. We address
the preemption arguments in two parts: (1) we analyze whether S. B. 4
intrudes on a field Congress intended to occupy, and (2) we examine the
extent to which S. B. 4 conflicts with federal law.
                                              1
        Field preemption occurs when “States are precluded from regulating
conduct in a field that Congress, acting within its proper authority, has
determined must be regulated by its exclusive governance.” 262 The Supreme
Court has indicated that courts should hesitate to infer field preemption
unless “the nature of the regulated subject matter permits no other
conclusion” or “Congress has unmistakably so ordained.” 263                            When
analyzing field preemption, “the relevant field should be defined
narrowly.” 264      The operative question, therefore, is whether Congress



        _____________________
        261
           Arizona, 

 (first quoting Fla. Lime & Avocado Growers, Inc. v. Paul,

 (1963); and then quoting Hines v. Davidowitz, 

 (1941)).
        262
              

        263
           DeCanas v. Bica, 

 (1976) (quoting Fla. Lime & Avocado Growers,

).
        264
           City of El Cenizo v. Texas, 

 (5th Cir. 2018) (first citing Arizona,

; and then citing DeCanas, 

 n.8).




                                              53
                                         No. 24-50149


intended to “occupy the field” 265 of immigration policies concerning entry
into and removal from the United States.
        The district court concluded that “the federal government has both a
dominant interest and a pervasive regulatory framework” to control
immigration into the United States, “preclud[ing] state regulation in the
area.” 266 We agree.
        For nearly 150 years, the Supreme Court has recognized that the
power to control immigration—the entry, admission, and removal of aliens—
is exclusively a federal power. 267 Despite this fundamental axiom, S. B. 4
creates separate, distinct state criminal offenses for unauthorized entry and
reentry of aliens into Texas from a foreign nation, and it provides procedures

        _____________________
        265
         Crosby v. Nat’l Foreign Trade Council, 

 (2000) (citing California
v. ARC Am. Corp., 

, 100 (1989)).
        266
              United States v. Texas, 

 (W.D. Tex. 2024).
        267
              See, e.g., Plyler v. Doe, 

, 228 n.23 (1982) (“[T]he State has no direct
interest in controlling entry into this country, that interest being one reserved by the
Constitution to the Federal Government . . . .”); Hampton v. Mow Sun Wong, 

,
102 n.21 (1976) (“It is important to note that the authority to control immigration
is . . . vested solely in the Federal Government, rather than the States . . . .”); DeCanas,

 (“Power to regulate immigration is unquestionably exclusively a federal
power.”); Galvan v. Press, 

 (1954) (“[T]hat the formulation of . . . policies
[regarding the entry of aliens and their right to remain here] is entrusted exclusively to
Congress has become about as firmly [e]mbedded in the legislative and judicial tissues of
our body politic as any aspect of our government.”); Truax v. Raich, 

 (1915)
(“The authority to control immigration—to admit or exclude aliens—is vested solely in
the Federal government.”); Fong Yue Ting v. United States, 

 (1893) (“The
power to exclude or to expel aliens, being a power affecting international relations, is vested
in the political departments of the government, and is to be regulated by treaty or by act of
[C]ongress . . . .”); Chy Lung v. Freeman, 

 (1875) (“The passage of laws
which concern the admission of citizens and subjects of foreign nations to our shores
belongs to Congress, and not to the States.”); Henderson v. Mayor of New York, 

 (1875) (holding immigration is a “power[], which, from [its] nature, [is] exclusive in
Congress”).




                                               54
                                      No. 24-50149


for their removal. More specifically, §§ 51.02 and 51.03 prohibit the unlawful
entry and reentry of aliens into the state from outside the country, 268 and
article 5B.002 empowers Texas state judges and magistrates to order aliens
to return to the foreign nation from which they entered or attempted to
enter. 269
        The Supreme Court’s decision in Arizona v. United States 270 provides
considerable guidance as to whether the plaintiffs are likely to succeed on
their claim that these provisions are field preempted by federal law. There,
the Court held a provision of Arizona’s S. B. 1070—§ 3—was field
preempted. 271 The state provision punished an alien’s “willful failure to
complete or carry an alien registration document,” 272 adopting the same
substantive standards as the federal law that required aliens to carry proof of
registration. 273 After analyzing the federal regulations in the “field of alien
registration,” the Court observed, “The framework enacted by Congress
leads to the conclusion . . . that the Federal Government has occupied the
field of alien registration.” 274 The Court noted, “The federal statutory
directives provide a full set of standards governing alien registration,




        _____________________
        268
              Tex. Penal Code §§ 51.02-03.
        269
              Tex. Code Crim. Proc. art. 5B.002.
        270
              

 (2012).
        271
              

.
        272
              

 at 400 (quoting 

(A)).
        273
              Id. at 402.
        274
              Id. at 401.




                                           55
                                         No. 24-50149


including the punishment for noncompliance.” 275 The Court explained this
national registration scheme “was designed as a ‘harmonious whole.’” 276
       Director Martin correctly observes the statutes at issue in Arizona did
not regulate the entry and removal of aliens. But the Court’s holding in
Arizona provides guiding principles. The Court held: “Where Congress
occupies an entire field, as it has in the field of alien registration, even
complementary state regulation is impermissible. Field preemption reflects
a congressional decision to foreclose any state regulation in the area, even if
it is parallel to federal standards.” 277
       Applying Arizona’s guiding principles, we believe Congress also
intended to occupy the field of immigration policies concerning entry into
and removal from the United States.                   In 1952, Congress enacted the
Immigration and Nationality Act (INA) to establish a “comprehensive
federal statutory scheme for regulation of immigration and naturalization”
and to set “the terms and conditions of admission to the country and the
subsequent treatment of aliens lawfully in the country.” 278 The Act’s
“central concern” is the “entry and stay of aliens” in the United States. 279
The Act makes it unlawful for any alien to enter the United States other than
through a port of entry, 280 and it punishes any alien who unlawfully reenters



       _____________________
       275
             Id.
       276
             Id. (quoting Hines v. Davidowitz, 

 (1941)).
       277
             

 (citing Silkwood v. Kerr–McGee Corp., 

 (1984)).
       278
           DeCanas v. Bica, 

 (1976); accord Chamber of Com. v.
Whiting, 

 (2011).
       279
             DeCanas, 

.
       280
             

(a).




                                              56
                                         No. 24-50149


or remains in the United States. 281                 By enacting the INA, Congress
established a comprehensive framework to identify who may enter, 282 how
they may enter, 283 where they may enter, 284 and what penalties apply for those
who enter unlawfully. 285
        When analyzing § 3 of S. B. 1070, the Arizona Court explained that
“[f]ederal law makes a single sovereign responsible for maintaining a
comprehensive and unified system to keep track of aliens within the Nation’s
borders.” 286 This logic applies to the equally—if not more—sensitive topic
of aliens entering and remaining in the country.
        The very moment an alien enters the United States, they are subject
to an intricate system of federal commands. In describing this system, we
note at the outset that after the Homeland Security Act of 2002, many



        _____________________
        281
              Id. § 1326(a).
        282
               See, e.g., id. § 1182 (establishing classes of aliens ineligible for visas or
admission).
        283
             See, e.g., id. § 1181 (establishing document requirements for admission); id.
§ 1225 (establishing aliens “who are applicants for admission or otherwise seeking
admission or readmission to or transit through the United States shall be inspected by
immigration officers”); id. § 1185 (“Unless otherwise ordered by the President, it shall be
unlawful . . . for any alien to depart from or enter . . . the United States except under such
reasonable rules, regulations, and orders, and subject to such limitations and exceptions as
the President may prescribe.”).
        284
            See, e.g., id. § 1224 (authorizing the Attorney General to designate ports of entry
for aliens arriving by aircraft); see also 

 (establishing different ports of entry
for different classes of aliens).
        285
            See, e.g., 

(a) (establishing criminal penalties for improper entry
by aliens); 

 § 1326(a) (establishing criminal penalties for improper reentry of removed
aliens).
        286
              Arizona v. United States, 

 (2012).




                                               57
                                         No. 24-50149


references in the INA to the “Attorney General” are now read to mean the
Secretary of Homeland Security. 287 With that context, we proceed.
       When an alien enters the United States, they immediately receive the
federal immigration status of “applicant for admission” and may lawfully
remain in this country only with federal permission. 288 If an alien enters the
United States “at any time or place other than as designated by the Attorney
General,” they are “inadmissible” and removable under 

(a)(6)(A)(i) and 1229a(e)(2). 289 But, before they are removed, all
aliens are subject to federal inspection. 290                     Congress has created a
comprehensive—and likely exclusive—system for federal immigration
officers to determine the admissibility and removability of aliens.
       Congress criminalized the unlawful entry and reentry of aliens under

(a) and 1326(a). But regardless of whether an alien violates
these provisions, an immigration officer must still determine whether they
may remain in the United States or whether they must be removed. The
“usual removal process involves an evidentiary hearing before an
immigration judge.” 291 At that hearing, the alien may be represented by
counsel, present evidence on their behalf, and attempt to show why they
should be admitted. 292 Among other things, the alien may claim asylum by
expressing fear of persecution or harm upon return to their home country;
seek relief from removal by asserting a Convention Against Torture (CAT)

       _____________________
       287
             See 

; Clark v. Martinez, 

, 374 n.1 (2005).
       288
             

(a)(1); see also 

 §§ 1181, 1182.
       289
             Id. §§ 1182(a)(6)(A)(i), 1229a(e)(2).
       290
             Id. § 1225(a)(3).
       291
             DHS v. Thuraissigiam, 

 (2020).
       292
             See 8 U.S.C. § 1229a(b)(4); 

(c).




                                               58
                                         No. 24-50149


claim; or seek dispensation from the Attorney General. 293 If their claim is
rejected and the alien is ordered removed, they can appeal the removal order
to the Board of Immigration Appeals. 294 If that appeal is unsuccessful, the
alien is generally entitled to review in a federal court of appeals. 295
        There is also a more expedited procedure for removal.                      If an
immigration officer determines that an alien who is arriving in the United
States is inadmissible because they misrepresented their admission status or
lack valid admission documentation, the officer must order the alien removed
from the United States without further hearing or review. 296 Other aliens
who are already present in the United States are subject to the same
expedited removal if they “(1) [are] inadmissible because [they] lack a valid
entry document; (2) [have] not ‘been physically present in the United States
continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility’; and (3) [are] among those whom the
Secretary of Homeland Security has designated for expedited removal.” 297
All aliens subject to this expedited removal procedure can avoid removal by
claiming asylum or a fear of persecution, at which point they are referred to
an asylum officer. 298 If the asylum officer finds the applicant does not have a

        _____________________
        293
           See 

(c) (asylum); 

 § 208.16 (CAT); 8 U.S.C. § 1229b
(dispensation from Attorney General); see also Arizona v. United States, 

(2012) (“If removal proceedings commence, aliens may seek asylum and other
discretionary relief allowing them to remain in the country or at least to leave without
formal removal.”).
        294
              8 U.S.C. § 1229a(c)(5); 

(b).
        295
              8 U.S.C. § 1229a(c)(5), 1252(a).
        296
              Id. §§ 1225(b)(1)(A)(i), 1182(a)(6)(C), 1182(a)(7).
        297
            DHS v. Thuraissigiam, 

 (2020) (citing 

(b)(1)(A)(i), (b)(1)(A)(iii)(I)-(II)).
        298
              

(b)(1)(A)(ii).




                                                 59
                                          No. 24-50149


credible fear, a supervisor will review the asylum officer’s determination. 299
The supervisor’s review can be appealed to an immigration judge. 300
         Against the backdrop of this national immigration system, and
applying the guiding principles espoused in Arizona, it becomes clear that the
new Texas laws pertaining to entry and removal infringe on a preempted
field.
         First, the Supreme Court in Arizona explained that “[a] principal
feature of the [federal] removal system is the broad discretion exercised by
immigration officials.” 301 As part of this discretion, the Arizona Court
acknowledged, “Federal officials, as an initial matter, must decide whether
it makes sense to pursue removal at all.” 302
         Indeed, the INA indicates executive discretion is paramount to
immigration policy. Congress gave the Executive the authority to establish
“reasonable rules, regulations, and orders” regarding any aliens attempting
to depart from or enter the United States. 303 Congress gave the Attorney
General authority to waive various requirements that would otherwise stand




         _____________________
         299
               

(e)(8).
         300
               

 § 1003.42.
         301
               Arizona v. United States, 

 (2012).
         302
               

         303
               

(a)(1).




                                                60
                                          No. 24-50149


in the way of admission. 304 Congress also allowed immigration judges the
ability to “cancel removal” of an alien who meets certain statutory criteria. 305
        Further, Congress has given the Executive statutory authority to
determine when state officers can “perform a function of an immigration
officer in relation to the investigation, apprehension, or detention of aliens in
the United States,” and has generally subjected any state officers performing
one of these functions to supervision by the Executive. 306 If it chose to do so,
the Executive could rely upon statutory authority to request Texas to assist,
under the supervision of federal officers, in arresting the very aliens whom
the Director now says DPS has the authority to arrest under state law,
unsupervised by any federal officer or agency. The Executive Branch has in
fact sought Texas’s assistance under various statutes, but the federal
government has not utilized Texas’s resources to the extent desired by the
Director. Regardless of the wisdom of the Executive’s actions and inactions,



        _____________________
        304
           See, e.g., 

 § 1158(b)(2)(A)(v) (providing Attorney General discretion to waive
asylum eligibility requirements if he believes “there are not reasonable grounds for
regarding the alien as a danger to the security of the United States”); id. § 1227(a)(1)(H)
(providing Attorney General discretion, under certain circumstances, to waive removal
provisions for aliens deemed inadmissible because of misrepresenting material facts when
seeking admission); id. § 1182(a)(9)(B)(v) (providing Attorney General the “sole
discretion” to waive certain admissibility bars for aliens “unlawfully present” if refusal to
admit the alien would result in “extreme hardship” to “lawfully resident spouse or
parent”); id. § 1182(d)(1) (providing Attorney General discretion to waive admissibility
requirements for aliens aiding law enforcement when the Attorney General believes it is in
the “national interest to do so”); id. § 1182(d)(14) (providing Secretary of Homeland
Security discretion to waive admissibility requirements for aliens that are victims of certain
crimes and helpful to law enforcement when the Secretary considers it to be “in the public
or national interest to do so”).
        305
              Id. § 1229b(a)-(b).
        306
              See id. § 1357(g)(1)-(3); see also infra notes 412 and accompanying text.




                                                61
                                         No. 24-50149


the congressionally designed system allows the Executive to decide whether
and how to pursue aliens illegally present in the United States.
       Congress evinced an intent that the Executive should have the sole
discretion to enforce the INA’s entry and removal provisions. The broadest
exercise of this discretion is the Executive’s decision not to pursue either
civilly or criminally the very aliens whom the Texas legislature has drawn a
bead upon in enacting new state laws. In fact, the Court observed in Arizona
that “[d]iscretion in the enforcement of immigration law embraces
immediate human concerns” and “policy choices that bear on this Nation’s
international relations.” 307 For instance, “[r]eturning an alien to his own
country may be deemed inappropriate even where he has committed a
removable offense or fails to meet the criteria for admission.” 308 “The
dynamic nature of relations with other countries requires the Executive
Branch to ensure that enforcement policies are consistent with this Nation’s
foreign policy with respect to these and other realities.” 309
       The Supreme Court reinforced the Executive’s discretion in
enforcing immigration laws in United States v. Texas. 310 There, Texas and
Louisiana          challenged   the      Biden    Administration’s   guidelines   that
“prioritize[d] the arrest and removal from the United States of noncitizens
who are suspected terrorists or dangerous criminals, or who have unlawfully
entered the country only recently.” 311                 Texas and Louisiana also
“contend[ed] that for certain noncitizens, such as those who are removable

       _____________________
       307
             Arizona, 

.
       308
             

       309
             

 (emphasis added).
       310
             

 (2023).
       311
             Id. at 673.




                                             62
                                              No. 24-50149


due to a state criminal conviction, § 1226(c) of Title 8 says that the
Department ‘shall’ arrest those noncitizens and take them into custody when
they are released from state prison.” 312 Though the Supreme Court resolved
the case based on standing, the reasoning supporting the Supreme Court’s
holding appears to be equally applicable in assessing whether S. B. 4—which
is aimed at increasing arrests and prosecutions of illegally present aliens—
impinges on discretion granted by the Constitution to the Executive. The
Supreme Court held: “Article II of the Constitution assigns the ‘executive
Power’ to the President and provides that the President ‘shall take Care that
the Laws be faithfully executed.’” 313 The Court said: “Under Article II, the
Executive Branch possesses authority to decide ‘how to prioritize and how
aggressively to pursue legal actions against defendants who violate the
law.’” 314 “[T]he Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case.” 315 The Supreme Court
held that this exclusive authority extended to enforcement of the
immigrations laws at issue: “That principle of enforcement discretion over
arrests and prosecutions extends to the immigration context, where the
Court has stressed that the Executive’s enforcement discretion implicates
not only ‘normal domestic law enforcement priorities’ but also ‘foreign-
policy objectives.’” 316 The exclusive authority over removal was expressly
set forth: “In line with those principles, this Court has declared that the

           _____________________
           312
                 Id. at 674.
           313
                 Id. at 678 (citing U.S. Const. art. II, § 1, cl. 1; § 3).
           314
                 Id. (quoting TransUnion LLC v. Ramirez, 

 (2021)).
           315
                 Id. at 679 (emphasis added) (quoting United States v. Nixon, 

(1974)).
           316
                 

 (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 

(1999)).




                                                    63
                                         No. 24-50149


Executive Branch also retains discretion over whether to remove a noncitizen
from the United States.” 317
       Second, as part of its field-preemption analysis in Arizona, the
Supreme Court pointed to the fact that the Arizona law regarding alien
registration “rules out probation as a possible sentence (and also eliminates
the possibility of a pardon),” while federal law did not. 318 In the present case,
a defendant may be removed before federal proceedings that would permit
her to remain in the United States lawfully have been initiated or concluded.
Under federal law, an alien who does not enter through a designated port of
arrival may nevertheless seek asylum. 319 A claim for asylum can be pursued
before, during, or after the conclusion of prosecution under federal law for
illegal entry. 320 In contrast, the Texas laws do not permit abatement of
prosecution and removal proceedings, 321 and, as a result, an alien may be
removed under article 5B.002(d) before asylum proceedings are concluded.
       The Texas laws also fail to provide an alien the ability to pursue a
CAT claim once proceedings are commenced. Federal law markedly differs.
An alien in removal proceedings with a reasonable fear of persecution or
torture in her home country may request relief from removal based on the
CAT. 322 “[T]he Attorney General has no discretion to deny relief to a




       _____________________
       317
             

 (citing Arizona v. United States, 

 (2012)).
       318
             Arizona, 

.
       319
             

(a)(1).
       320
             See, e.g., United States v. Vasquez-Hernandez, 

 (5th Cir. 2019).
       321
             Tex. Code Crim. Proc. art. 5B.003.
       322
             See 

, 208.31.




                                               64
                                         No. 24-50149


noncitizen who establishes his eligibility.                [Even a] conviction of an
aggravated felony has no effect on CAT eligibility . . . .” 323
       Finally, the Supreme Court in Arizona emphasized the breadth of the
United States’ power “to control and conduct relations with foreign
nations” and the reasons for the existence of that power. 324 The Supreme
Court said in Arizona:

    • “Decisions [regarding removal] touch on foreign relations and must
        be made with one voice.” 325
    • “Removal decisions, including the selection of a removed alien’s
        destination, may implicate [the Nation’s] relations with foreign
        powers and require consideration of changing political and economic
        circumstances.” 326
    • “The federal power to determine immigration policy is well settled.
        Immigration policy can affect trade, investment, tourism, and
        diplomatic relations for the entire Nation, as well as the perceptions
        and expectations of aliens in this country who seek the full protection
        of its laws.” 327
    • “Perceived mistreatment of aliens in the United States may lead to
        harmful reciprocal treatment of American citizens abroad.” 328
    • “It is fundamental that foreign countries concerned about the status,
        safety, and security of their nationals in the United States must be

       _____________________
       323
             Moncrieffe v. Holder, 

, 187 n.1 (2013).
       324
             See Arizona v. United States, 

 (2012).
       325
             

.
       326
             

 (alteration in original) (quoting Jama v. ICE, 

 (2005)).
       327
             

.
       328
             

                                               65
                                           No. 24-50149


         able to confer and communicate on this subject with one national
         sovereign, not the 50 separate States.” 329
     • “This Court has reaffirmed that ‘[o]ne of the most important and
         delicate of all international relationships . . . has to do with the
         protection of the just rights of a country’s own nationals when those
         nationals are in another country.’” 330
These considerations apply in full force to S. B. 4 and certainly auger in favor
of concluding that Congress intended to occupy the field regarding the entry
and removal of aliens.
        To be sure, Arizona did not recognize this field. But the Supreme
Court has held that federal law occupies a variety of other fields, including
alien registration; 331 nuclear safety; 332 aircraft noise; 333 the “design,
construction, alteration, repair, maintenance, operation, equipping,
personnel qualification, and manning” of tanker vessels; 334 wholesales of



        _____________________
        329
           

 (first citing Chy Lung v. Freeman, 

 (1875); and then citing
The Federalist No. 3, at 44-45 (John Jay) (Clinton Rossiter ed., 1961) (observing that
federal power over foreign relations avoids situations where “bordering States . . . under
the impulse of sudden irritation, and a quick sense of apparent interest or injury” might
take actions that could undermine foreign relations)).
        330
              

 (quoting Hines v. Davidowitz, 

 (1941)).
        331
           See, e.g., id. at 401; see also Hines, 

 (“[I]t is of importance that this
legislation is in a field which affects international relations, the one aspect of our
government that from the first has been most generally conceded imperatively to demand
broad national authority. Any concurrent state power that may exist is restricted to the
narrowest of limits . . . .”).
        332
              See, e.g., Eng. v. Gen. Elec. Co., 

 (1990).
        333
              See, e.g., City of Burbank v. Lockheed Air Terminal Inc., 

 (1973).
        334
              See, e.g., United States v. Locke, 

 (2000) (quoting 

(a)).




                                                66
                                          No. 24-50149


natural gas in interstate commerce; 335 and locomotive equipment. 336 Alien
entry and removal is equally, if not more important, to the interest of the
national sovereign. 337 Congress’s creation of a complex, national system for
determining whether an alien may enter and remain in the United States is
strong evidence Congress intended to occupy the field of alien entry and
removal. The national immigration system in the INA touches a field “in
which the federal interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same subject.” 338
        We do not write on a clean slate. There is nearly 150 years of Supreme
Court precedent suggesting that the power to control the entry and removal
of aliens is “vested solely in the Federal Government, rather than the
States.” 339        In DeCanas v. Bica, 340 the Supreme Court declared—in
unmistakable terms—that the “[p]ower to regulate immigration is
unquestionably exclusively a federal power.” 341 The Court further explained
that the “comprehensiveness of legislation governing entry and stay of aliens



        _____________________
        335
           See Schneidewind v. ANR Pipeline Co., 

 (1988); Exxon Corp.
v. Eagerton, 

 (1983).
        336
           See Kurns v. R.R. Friction Prods. Corp., 

 (2012); Napier v. Atl.
Coast Line R. Co., 

 (1926).
        337
           Cf. United States v. Valenzuela-Bernal, 

 (1982) (“The power
to regulate immigration—an attribute of sovereignty essential to the preservation of any
nation—has been entrusted by the Constitution to the political branches of the Federal
Government.”).
        338
              Rice v. Santa Fe Elevator Corp., 

 (1947).
        339
         Hampton v. Mow Sun Wong, 

, 101 n.21 (1976); see also supra note 301
and accompanying text.
        340
              

 (1976).
        341
              

.




                                               67
                                         No. 24-50149


was to be expected in light of the nature and complexity of the subject.” 342
In light of this caselaw, Texas cannot step into the shoes of the national
sovereign under our Constitution and federal laws. If every state could
regulate the unlawful entry, reentry, and removal of aliens, “[e]ach additional
statute [would] incrementally diminish[] the [federal government]’s control
over enforcement” and “detract[] from the ‘integrated scheme of
regulation’ created by Congress.” 343
          The dissenting opinion, citing a law review article and a quote from an
1837 case, retorts that states regulated immigration in the nineteenth century
as part of their police powers until Congress began to legislate on immigration
in 1875. 344 Even assuming that the dissenting opinion’s historical assertions
are true, they do not control because a preemption analysis can change upon
the introduction of new federal legislation. In Arizona, the Court explained
that “[w]hen there was no comprehensive federal program regulating the
employment of unauthorized aliens, this Court found that a State had
authority to pass its own laws on the subject,” but “[c]urrent federal law is
substantially different from the [previous] regime” because “Congress
enacted IRCA as a comprehensive framework for ‘combating the



          _____________________
          342
           

 (emphasis added). The Court also noted that federal immigration law
controls “who should or should not be admitted into the country, and the conditions under
which a legal entrant may remain.” 

; cf. Truax v. Raich, 

 (1915)
(“The authority to control immigration—to admit or exclude aliens—is vested solely in
the Federal government.”).
          343
                Wis. Dep’t of Indus., Lab. & Hum. Rels. v. Gould Inc., 

(1986).
          344
         Post at 150 (citing Mayor of New York v. Miln, 

 (1837); Gerald
L. Neuman, The Lost Century of American Immigration Law (1776-1875), 

, 1846-59 (1993)).




                                              68
                                         No. 24-50149


employment of illegal aliens.’” 345 Therefore, a portion of Arizona S. B. 1070
barring unauthorized aliens for working or seeking employment in Arizona
was preempted by IRCA. 346
       Director Martin makes three counterarguments. First, he argues that
“state laws that ‘mirror[] federal objectives’ are more—not less—likely to be
upheld.” 347 The Supreme Court, however, rejected this exact argument in
Arizona, stating it “ignores the basic premise of field preemption—that
States may not enter, in any respect, an area the Federal Government has
reserved for itself.” 348 In fact, the resemblance between S. B. 4’s provisions
and the federal provisions criminalizing illegal entry and reentry—§§ 1325(a)
and 1326(a)—make the Court’s analysis in Arizona particularly salient. In
the same way Arizona S. B. 1070 “add[ed] a state-law penalty for conduct
proscribed by federal law,” 349 S. B. 4 criminalizes behavior already
prohibited by the INA.
       The Supreme Court in Arizona explained why § 3 was field preempted
despite its apparent congruence with federal law. The Court relied on the
fact that “[w]ere § 3 to come into force, the State would have the power to
bring criminal charges against individuals for violating a federal law even in
circumstances where federal officials in charge of the comprehensive scheme
determine[d] that prosecution would frustrate federal policies.” 350 The

       _____________________
       345
         Arizona v. United States, 

 (2012) (quoting Hoffman Plastic
Compounds, Inc. v. NLRB, 

 (2002)).
       346
             Id. at 403-07.
       347
             See Plyler v. Doe, 

 (1982).
       348
             Arizona, 

.
       349
             

.
       350
             

.




                                              69
                                  No. 24-50149


Supreme Court explained that “[p]ermitting the State to impose its own
penalties for the federal offenses here would conflict with the careful
framework Congress adopted.” 351 This logic applies with equal force to the
Texas laws regarding entry and removal.
        Second, Director Martin cites several federal statutes that he
contends reflect that federal immigration law regularly encourages States to
aid in federal entry and removal. The Director cites 

 for the
proposition that it is a crime for an alien to “flee” from “State[] or local law
enforcement” around immigration checkpoints. But that federal statute
makes it a federal crime when someone “flees Federal, State, or local law
enforcement agents in excess of the legal speed limit.” 352 This statute would
not prohibit Texas from arresting or prosecuting a person for violating state-
established speed limits under state law. Indeed, a federal statute provides
that state law extends over immigration stations and that officers in charge of
immigration stations shall admit “State and local officers charged with the
enforcement of the laws of the State or Territory . . . in order that such State
and local officers may preserve the peace and make arrests for crimes under
the laws of the States and Territories.” 353 But it does not authorize Texas to
(1) enact a statute making it a state crime to flee a checkpoint or (2) arrest or
prosecute anyone under § 758. Most importantly, this statute does not
pertain to whether someone should be allowed to enter or remain in the
United States or whether they should be deported or removed if they enter
illegally.



        _____________________
        351
              Id.
        352
              

.
        353
              

.




                                       70
                                       No. 24-50149


        Director Martin points to 

(c), arguing that “States
may make arrests for violation[s] of alien smuggling prohibition[s].” But,
here again, this statute has nothing to do with whether an alien should be
prosecuted or removed for being in the United States illegally. Rather, this
statute makes it a crime for anyone, whether they are an alien, a United States
citizen, or a person lawfully in the United States, to engage in smuggling
aliens into the United States or harboring or transporting them. 354
        The Director argues that 

(c)(3)(C)(i), 

(a)(15)(T)(i), and 

(a)(15)(U) contemplate state
prosecution or investigation of illegal trafficking. But, here again, these
statutes do not authorize Texas to determine whether a person is illegally
present in the United States in order to take action to remove or deport her.
        Director Martin fails to explain how these laws are relevant to the
entry or removal provisions. While Texas undoubtedly can assist the federal
government in arresting aliens who violate federal law when federal law
permits it to do so, 355 the question is not whether Congress intended to
occupy the entire field of immigration. 356 The laws cited by Director Martin
do not facilitate the inquiry pertinent in the present case, which is whether
Congress intended to occupy the field of immigration policies concerning
entry into or removal from the United States.
        Third, Director Martin maintains the federal government has
“abandoned” the field because the Executive Branch has failed to enforce

        _____________________
        354
              

 § 1324(a).
        355
           See, e.g., id. § 1357(g) (allowing a state to enter into an agreement with the
federal government to aid in “the investigation, apprehension, or detention” of aliens).
        356
           See City of El Cenizo v. Texas, 

 (5th Cir. 2018) (first citing
Arizona, 

; and then citing DeCanas v. Bica, 

, 360 n.8 (1976)).




                                             71
                                         No. 24-50149


immigration policy in dereliction of its statutory duties. Regardless of
whether these claims are accurate, our task is to determine whether Congress
“‘legislated so comprehensively’ in a particular field that it ‘left no room for
supplementary state legislation.’” 357 “Evidence of pre-emptive purpose is
sought in the text and structure of the statute at issue,” not enforcement
decisions by the Executive. 358             Here, there is strong support for the
conclusion that Congress has “legislated so comprehensively” in the field of
alien entry and removal that it “left no room for supplementary state
legislation.” 359
                                               2
        Las Americas has shown that it is likely to prevail on its argument that
certain provisions of S. B. 4 are conflict preempted. Generally speaking, the
Supreme Court has recognized that a state statute may be preempted by

        _____________________
        357
            Kansas v. Garcia, 

 (2020) (quoting R.J. Reynolds Tobacco Co. v.
Durham County, 

 (1986)). Texas references Parker v. Brown, 

 (1943), for the proposition that the mere adoption of an act by Congress, without
executive action putting the legislation into effect, does not implicate field preemption.
However, Parker is distinguishable for two reasons. First, Parker did not involve the
Executive Branch allegedly abandoning a field but rather related to a congressional act (the
federal Agricultural Marketing Agreement Act of 1937). 

. Second, the
Supreme Court held there was no field preemption because the Act specifically
“contemplate[d] the existence of state programs at least until such time as the Secretary
[of Agriculture] shall establish a federal marketing program.” 

. The Secretary
had not adopted implementing regulations, and the Court held there was no “occupation
of the legislative field” by the adoption of the Agricultural Marketing Agreement Act. 

. In contrast, the intersecting web of national immigration laws does not contemplate
state regulation.
        358
          See CSX Transp., Inc. v. Easterwood, 

 (1993); see also Va.
Uranium, Inc. v. Warren, 

 (2019) (Gorsuch, J., joined by Thomas
and Kavanaugh, JJ.) (lead opinion) (noting “Congress’s authority to delimit the
preemptive effect of its laws”).
        359
              Kansas, 

 (quoting R.J. Reynolds Tobacco Co., 

).




                                               72
                                       No. 24-50149


federal law when (1) it is impossible for a person to comply with both the state
law and federal law, or (2) the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” 360 The Court has described the relationship between these
concepts this way:
        This Court, when describing conflict pre-emption, has spoken
        of pre-empting state law that “under the circumstances of th[e]
        particular case . . . stands as an obstacle to the accomplishment
        and execution of the full purposes and objectives of
        Congress”—whether that “obstacle” goes by the name of
        “conflicting; contrary to; . . . repugnance; difference;
        irreconcilability; inconsistency; violation; curtailment; . . .
        interference,” or the like. The Court has not previously driven
        a legal wedge—only a terminological one—between
        “conflicts” that prevent or frustrate the accomplishment of a
        federal objective and “conflicts” that make it “impossible” for
        private parties to comply with both state and federal law.
        Rather, it has said that both forms of conflicting state law are
        “nullified” by the Supremacy Clause . . . . 361




        _____________________
        360
           See Crosby v. Nat’l Foreign Trade Council, 

 (2000) (quoting
Hines v. Davidowitz, 

 (1941)).
        361
            Geier v. Am. Honda Motor Co., 

 (2000) (alterations and
omissions in original) (citations omitted) (first quoting Hines, 

; then citing
Jones v. Rath Packing Co., 

 (1977); then citing Fid. Fed. Sav. & Loan Ass’n
v. de la Cuesta, 

 (1982); then citing United States v. Locke, 

 (2000); and then citing Eng. v. Gen. Elec. Co., 

 (1990)); see also
Arizona, 

; Hines, 

 (“In the final analysis, there can be no
one crystal clear distinctly marked formula. Our primary function is to determine whether,
under the circumstances of this particular case, Pennsylvania’s law stands as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.” (citing
Savage v. Jones, 

 (1912))).




                                             73
                                         No. 24-50149


Arizona, which we have already discussed, employed an “obstacle” analysis
to assess whether state laws related to immigration were preempted. 362 So
did Hines v. Davidowitz, 363 another similar case. 364 We take that approach,
too.
       The Texas entry provisions make it unlawful for an alien to enter or
reenter the state from a location other than a port of entry. 365 Director Martin
contends that these provisions mirror federal-law standards, with S. B. 4
“adopt[ing]” federal law. It is true that the “mere fact” that a state law
“overlap[s]” with a federal criminal provision does not, by itself, make a case
for conflict preemption. 366 But Las Americas has done much more than
merely identify that S. B. 4 overlaps with its federal criminal analogues—
indeed, conflicts abound between S. B. 4 and a number of federal laws.
       To begin, S. B. 4 affects aliens whom Congress has assigned a federal
immigration status—that of an “applicant for admission” 367—and interferes
with federal immigration officials’ ability to determine the applicant’s
admissibility. The relevant statute provides: “An alien present in the United
States who has not been admitted or who arrives in the United States
(whether or not at a designated port of arrival . . . ) shall be deemed for
purposes of this chapter an applicant for admission.” 368 Congress directed
that all applicants for admission “shall” be inspected by a federal

       _____________________
       362
             Arizona, 

.
       363
             

 (1941).
       364
             

.
       365
             Tex. Penal Code §§ 51.02-03.
       366
             Kansas v. Garcia, 

 (2020).
       367
             

(a)(1).
       368
             

                                              74
                                          No. 24-50149


immigration officer. 369 We described this process in more detail above and
we summarize it again here. First, the immigration officer must determine
the alien’s admissibility, a status defined in part by statute and in part by a
designation from the Secretary of Homeland Security. 370 Second, if the
immigration officer determines that an alien who is “arriving in the United
States” or is present but has “not been admitted or paroled” may be
inadmissible, the officer must then decide whether the alien is inadmissible
under two specified statutory provisions. 371 Aliens deemed inadmissible
under those specific statutory provisions are generally subject to expedited
removal unless they indicate an intention to apply for asylum. 372 Aliens who
are not subject to expedited removal (and who are not “clearly and beyond a
doubt entitled to be admitted”) are detained for further proceedings before
an immigration judge, who “shall” determine whether the alien is in fact
inadmissible. 373
        In light of this process, it is problematic that state courts will
determine if an alien has entered illegally and order their removal. In Villas
at Parkside Partners v. City of Farmers Branch, 374 a majority of our en banc

        _____________________
        369
              

 § 1225(a)(3).
        370
          Id. § 1225(b)(1)(A), (b)(2)(A); see DHS v. Thuraissigiam, 

, 108-09
& n.3 (2020).
        371
             

(b)(1)(A)(i) (directing the federal immigration officer to
determine whether the alien is inadmissible under either 

(a)(6)(C) or
(a)(7)); 

 § 1182(a)(6)(C) (designating as inadmissible aliens who, by fraud or willfully
misrepresenting a material fact, procure or seek to procure an immigration document or
other immigration benefit); id. § 1182(a)(7) (designating as inadmissible aliens who did not
have a valid entry document at the time they applied for admission).
        372
              Id. § 1225(b)(1)(A)(i)-(ii); see Thuraissigiam, 

.
        373
              

(b)(2)(A), 1229a(a)(1).
        374
              

 (5th Cir. 2013) (en banc).




                                                75
                                           No. 24-50149


court concluded that state courts may not assess the legality of an alien’s
presence. 375 There, the ordinance at issue allowed for state judicial review as
to whether an individual was lawfully present in the country. 376 The lead
opinion concluded that because of “the discretion and variability inherent in
a determination of whether an alien is ‘lawfully present in the United
States.’ . . . the judicial review section of the Ordinance [] is preempted by
federal law.” 377
        The Texas law regarding entry grants Texas judges significantly more
power than the ordinance at issue in Farmers Branch. 378 It allows Texas
courts to impose criminal sanctions and order removal if an alien is found to
have entered or remained in Texas illegally. 379              As some jurists have
recognized, “[T]he structure of the [federal] immigration statutes makes it
impossible for [a] State to determine which aliens are entitled to residence,
and which eventually will be deported.” 380


        _____________________
        375
           Although there was no majority opinion in Farmers Branch, ten judges agreed
that the judicial review sections of the city ordinance at issue were preempted in part by
federal law. See 

 (Higginson, J., joined by Stewart, C.J., and Davis,
Southwick, and Haynes, JJ.) (lead opinion); 

 (Reavley, J., joined by
Graves, J., concurring in the judgment); 

 (Dennis, J., joined by Reavley,
Prado, and Graves, JJ., specially concurring); 

 (Richman, J., concurring
in part and dissenting in part).
        376
              

 (lead opinion).
        377
              

 at 537 (citing 8 U.S.C. § 1229a(a)(3)).
        378
           In Farmers Branch, the ordinance indicated that an alien’s unlawful presence
was to be “determined under federal law.” Id. at 536. S. B. 4 goes further, allowing state
judges to determine an alien’s unlawful presence under state law. See, e.g., Tex. Penal
Code § 51.03(c).
        379
              See, e.g., Tex. Code Crim. Proc. art. 5B.002(d).
        380
         Plyler v. Doe, 

 (1982) (Blackmun, J., concurring); 

 at 241
n.6 (Powell, J., concurring).




                                                76
                                       No. 24-50149


       The Texas entry and removal provisions also conflict with federal law
because they prohibit abatement of prosecutions under Chapter 51 of the
Penal Code on the grounds that federal proceedings have been or will be
commenced regarding the immigration status of the defendant. S. B. 4
amended the Texas Code of Criminal Procedure to add article 5B.003. It
provides:
       Art. 5B.003. Abatement of Prosecution on Basis of
       Immigration Status Determination Prohibited
       A court may not abate the prosecution of an offense under
       Chapter 51, Penal Code, on the basis that a federal
       determination regarding the immigration status of the
       defendant is pending or will be initiated. 381
       S. B. 4 then requires a court convicting a defendant of a Chapter 51
offense to order the removal of the defendant. 382 But federal law provides
that an alien may be permitted to remain in the United States lawfully even if
they have been convicted of illegal entry. 383 It would therefore conflict with
federal law to remove an alien before (1) the federal government has decided
whether that alien is permitted to remain in the United States because asylum
should be granted, (2) the federal government has decided whether a CAT
claim is valid, or (3) the United States Attorney General has decided whether
to exercise discretion to waive obstacles to removal and admit the alien. 384
       The removal provision appears to create another conflict by
authorizing Texas state judges and magistrate judges to remove aliens from


       _____________________
       381
             Tex. Code Crim. Proc. art. 5B.003.
       382
             

 art. 5B.002(d).
       383
             See supra notes 288-91 and accompanying text.
       384
             See supra notes 291-95 and accompanying text.




                                            77
                                          No. 24-50149


the United States without notice to or consent from the federal
government. 385 This runs headlong into federal law. Congress has identified
the grounds for removal, the requirements for commencing and
administering removal proceedings, the protections afforded to aliens
throughout removal proceedings, and the process for selecting the country to
which aliens may be removed. 386 A “principal feature” of this complex
removal system is the “broad discretion” exercised by federal immigration
officials.387 Contrast this discretion with the S. B. 4 removal provision’s
grant to Texas judges of the unilateral power to order aliens removed. The
removal provision sidesteps the sensitive issues that federal immigration
officers are to consider. 388
        The Texas removal provisions will significantly conflict with the
United States’ authority to select the country to which aliens will be
removed. Many aliens who cross into Texas from Mexico are not citizens or




        _____________________
        385
              See Tex. Code Crim. Proc. art. 5B.002.
        386
              See, e.g., 

(a), 1225, 1227, 1229, 1229a, 1231(a)-(b).
        387
              Arizona v. United States, 

 (2012).
        388
            Cf., e.g., Plyler v. Doe, 

, 241 n.6 (1982) (Powell, J., concurring)
(“But it is impossible for a State to determine which aliens the Federal Government will
eventually deport, which the Federal Government will permit to stay, and which the
Federal Government will ultimately naturalize. Until an undocumented alien is ordered
deported by the Federal Government, no State can be assured that the alien will not be
found to have a federal permission to reside in the country, perhaps even as a citizen.
Indeed, even the Immigration and Naturalization Service cannot predict with certainty
whether any individual alien has a right to reside in the country until deportation
proceedings have run their course.”).




                                                78
                                       No. 24-50149


residents of Mexico. 389 Nevertheless, S. B. 4 would require removing them
to Mexico. 390 The United States would have no say in the matter.
        Furthermore, the Supreme Court has cautioned that “conflict is
imminent” when “two separate remedies are brought to bear on the same
activity.” 391 The remedies available under S. B. 4 are not congruent with
federal remedies. 392
        The INA provides the federal government discretion to decide
whether to initiate criminal proceedings or civil immigration proceedings
once an alien is apprehended. The Texas scheme blocks this exercise of
discretion. An alien apprehended illegally entering or remaining in Texas is
charged with a crime punished by removal, and the federal government has
no voice in further proceedings. To the extent that state law affords
prosecutorial discretion, it vests that discretion in a state official, not the
United States Attorney General or another federal officer. An arrest or
conviction under S. B. 4 would interfere with federal law because the Texas



        _____________________
        389
           See Br. of the Government of the United Mexican States as Amicus Curiae at 11-
12 (noting that “that enforcement of SB 4 would interfere with Mexico’s sovereign right
to determine who enters its territory”).
        390
           See Tex. Code Crim. Proc. art. 5B.002(c)-(d) (directing that an order
pursuant to S. B. 4 shall “require the person to return to the foreign nation from which the
person entered or attempted to enter”); Tex. Penal Code § 51.02 (criminalizing entry
into Texas “directly from a foreign nation”).
        391
           Crosby v. Nat’l Foreign Trade Council, 

 (2000) (alteration
omitted) (quoting Wis. Dep’t of Indus., Lab. & Hum. Rels. v. Gould, Inc., 

(1986)).
        392
           Compare Tex. Penal Code §§ 51.02-03, and Tex. Code Crim. Proc.
art. 5B.002, with 

(a). See also 

(a) (stating the criminal
punishment for a removed alien attempting to reenter the United States shall be a “fine[]
under Title 18, or imprison[ment] not more than 2 years, or both”).




                                            79
                                       No. 24-50149


process for arrests and convictions suppresses or subverts federal authority
over an alien’s status in the United States.
       It is evident that the Texas entry and removal laws significantly
eliminate the exercise of discretion by federal immigration officials, including
the United States Attorney General. 393 Though the Texas laws carve out
some room for instances in which the federal government has already
exercised such discretion, 394 the Texas laws by no means afford an alien the
opportunity to benefit fully from the broad discretion available under federal
law.
       The dissenting opinion’s analysis and hypotheticals ignore these
crucial points. The challenged provisions are not preempted because they
conflict with the policy preferences of a particular administration 395—but
because, inter alia, they rob every administration of the very discretion in
alien removal matters that Congress granted to the federal executive and not
to the States.
       The preliminary injunction does not prohibit Director Martin from
arresting illegal aliens and turning them over to federal authorities if and
when the federal executive branch requests Texas to do so. The injunction
only prohibits Director Martin from asserting authority based on a state law
that is likely preempted. The Director may arrest tens of thousands of aliens
that are in Texas illegally as long as Texas has been requested to do so by the
federal government and complies with all federal laws and regulations that
govern such a request. But the fact that federal law permits such cooperation


       _____________________
       393
             See supra note 339 and accompanying text.
       394
             See Tex. Penal Code § 51.02(c).
       395
             Post at 155-56, 162-63.




                                            80
                                    No. 24-50149


does not save from preemption a state law that allows its law enforcement
officers to arrest and remove aliens, independent of federal law. 396
       Director Martin invites us to read S. B. 4’s removal provisions as
merely requiring that an alien subject to an order under Texas Code of
Criminal Procedure article 5B.002 “be transported to a port of entry, at
which point—as both a practical and legal matter—the alien’s potential
removal is a question for federal immigration officers.” 397 That is not what
the statute says. The statute says that the order shall “requir[e] the person
to return to the foreign nation from which the person entered or attempted
to enter.” 398 An alien subject to an order commits a second-degree felony if
they “refuse[] to comply with the order.” 399 A second-degree felony carries
a punishment of two to twenty years of imprisonment and up to a $10,000
fine. 400 In short, S. B. 4 directs state judges to order an alien to leave the
United States on pain of up to twenty years in prison and a $10,000 fine. It
blinks reality to argue the statute’s plain terms do anything other than require
the removal of aliens.
       Director Martin directs us to the declaration of Victor Escalon, a
Regional Director for DPS, who explained DPS’s plans for enforcing
S. B. 4. 401 But that declaration, too, confirms that article 5B.002 orders are
removal orders. Regional Director Escalon stated that, to enforce an article
5B.002 order, DPS plans to contact Mexican immigration authorities and

       _____________________
       396
             See post at 162-63.
       397
             See Tex. Code Crim. Proc. art. 5B.002(e).
       398
             Id. art. 5B.002(d).
       399
             Tex. Penal Code § 51.04.
       400
             Id. § 12.33.
       401
             ROA.314-16, ¶¶ 1, 3.




                                         81
                                    No. 24-50149


inform U.S. Customs and Border Protection before bringing the alien to a
port of entry. 402 He further explained that “[i]f Mexican authorities do not
accept the entrance of an alien subject to an order to return, the escorting
DPS officer will deliver him to the American side of a port of entry and
observe the alien go to the Mexican side.” 403             He continued: “Upon
witnessing the alien[] cross to the Mexican side of the international bridge,
the officer will consider the alien[] to have complied with the return order
and will cease monitoring the alien.” 404 Director Martin envisions a scheme
in which aliens subject to an article 5B.002 order are brought to a port of entry
and either released directly into Mexican custody or expected to cross to
Mexico. Only when the officer statutorily directed to “monitor[] compliance
with the order” 405 witnesses the alien cross into Mexico will the officer
consider the alien to have complied with the order. Failure to comply is a
second-degree felony. 406 That is a removal scheme.
       The         dissenting   opinion—relying        principally     on    Texas’s
representations at oral argument—seemingly accepts Director Martin’s
contention that enforcement of article 5B.002 orders will operate differently
from what the governing statutes direct. 407 The dissenting opinion reasons
that Director Martin has thus “proffered a seemingly constitutional
application of the return provisions,” and Texas district attorneys may still

       _____________________
       402
             ROA.315, ¶ 9-11.
       403
             ROA.316, ¶ 15.
       404
             ROA.316, ¶ 15.
       405
          Tex. Code Crim. Proc. art. 5B.002(e)(2) (requiring that an order include
“the law enforcement officer or state agency responsible for monitoring compliance with
the order”).
       406
             Tex. Penal Code § 51.04.
       407
             Post at 164-66.




                                          82
                                         No. 24-50149


“come up with an additional constitutional application.” 408 Assertions by
those “charged with enforcement and construction” of state laws are
“entitled to ‘respectful consideration,’” not unquestioning deference. 409
We decline to rewrite the statute’s plain terms and ignore the declarations in
the record. 410 Moreover, a state cannot insulate unconstitutional laws from
legal challenges simply by making a nonbinding promise at oral argument to
enforce such laws in ways wholly divorced from their text and plain meaning.
The dissenting opinion’s logic provides states with an end-run around
constitutional scrutiny.
        Even setting aside S. B. 4’s removal consequence, the remaining
provisions nevertheless conflict with federal law. “Federal law specifies
[the] limited circumstances in which state officers may perform the functions
of an immigration officer.” 411 At all times, those circumstances require
federal supervision or authorization. Under 

(g), the Attorney
General “may enter into a written agreement with a State” or any of its
“political subdivision[s],” allowing state or local officers “to perform a
function of an immigration officer in relation to the investigation,
apprehension, or detention of aliens in the United States.” 412 In performing
those functions, the officers must “be subject to the direction and

        _____________________
        408
              Post at 170.
        409
           L. Students C.R. Rsch. Council, Inc. v. Wadmond, 

 (1971)
(quoting Fox v. Standard Oil Co. of N.J., 

 (1935)).
        410
           Cf. Dubin v. United States, 

 (2023) (“Finally, the Government
makes a familiar plea: There is no reason to mistrust its sweeping reading, because
prosecutors will act responsibly. To this, the Court gives a just-as-familiar response: We
‘cannot construe a criminal statute on the assumption that the Government will “use it
responsibly.”’” (quoting McDonnell v. United States, 

 (2016))).
        411
              Arizona v. United States, 

 (2012).
        412
              

(g)(1).




                                               83
                                          No. 24-50149


supervision of the Attorney General.” 413 This federal law expressly provides
that an agreement is not required for any state or political subdivision of a
state to communicate with the Attorney General about the immigration
status of an individual, including “reporting knowledge that a particular alien
is not lawfully present in the United States.” 414 That same provision,
§ 1357(g)(10), further provides that an agreement is not necessary for a state
or local government “otherwise to cooperate with the Attorney General in
the identification, apprehension, detention, or removal of aliens not lawfully
present in the United States.” 415 This is not a grant of authority to a state to
enact a statute making it a state crime to be unlawfully present. Nor is it a
grant of authority to a state to enact a statute that gives authority under state
law to state officials to arrest or remove someone illegally present. This
provision does not even grant a state the authority to arrest or remove under
federal law. Similarly, other statutes expressly authorize state officers’ arrest
authority—but only in narrow circumstances. 416 The Texas laws at issue
permit state authorities to prosecute an individual for being unlawfully



        _____________________
        413
          Id. § 1357(g)(3); see also City of El Cenizo v. Texas, 

 (5th Cir.
2018) (“Federal law,” including § 1357(g), “regulates how local entities may cooperate in
immigration enforcement.”).
        414
              

(g)(10)(A).
        415
              

 § 1357(g)(10)(B).
        416
             See id. § 1103(a)(10) (empowering the Secretary of Homeland Security to
“authorize any State or local law enforcement officer” to “perform or exercise the
powers . . . conferred” to federal immigration officers “[i]n the event the [Secretary]
determines that an actual or imminent mass influx of aliens arriving off the coast of the
United States, or near a land border, presents urgent circumstances requiring an immediate
Federal response”); id. § 1324(c) (permitting all officers “whose duty it is to enforce
criminal laws” to make arrests for the offense of “bringing in and harboring certain
aliens”).




                                              84
                                       No. 24-50149


present without any consultation or cooperation with the Attorney General
of the United States.
        S. B. 4 also permits an end run around 8 U.S.C. § 1252c. Section
1252c authorizes “State and local law enforcement officials” to “arrest and
detain” aliens “illegally present in the United States” only if the alien “has
previously been convicted of a felony in the United States and deported or
left the United States after such conviction.” 417 S. B. 4, however, permits
Texas law enforcement to arrest and detain aliens illegally present in Texas
regardless of whether the alien has been deported after being convicted of a
felony or otherwise left the United States after such conviction. 418
Compounding the problem, § 1252c contains another condition on state
officers’ arrest authority: the officer may arrest the alien
        only after the State or local law enforcement officials obtain
        appropriate confirmation from the Immigration and
        Naturalization Service of the status of such individual and only
        for such period of time as may be required for the Service to
        take the individual into Federal custody for purposes of
        deporting or removing the alien from the United States. 419
S. B. 4 clearly conflicts with this statute.
        Allowing state law enforcement officers to arrest and prosecute aliens
in these circumstances “would allow the State to achieve its own immigration
policy. The result could be unnecessary harassment of some aliens (for
        _____________________
        417
              8 U.S.C. § 1252c(a).
        418
            See Tex. Penal Code §§ 51.02-03; see also 

(a)(9)(B)(ii)
(“For purposes of this paragraph, an alien is deemed to be unlawfully present in the United
States if the alien is present in the United States after the expiration of the period of stay
authorized by the Attorney General or is present in the United States without being
admitted or paroled.”).
        419
              8 U.S.C. § 1252c(a).




                                             85
                                           No. 24-50149


instance, a veteran, college student, or someone assisting with a criminal
investigation) who federal officials determine should not be removed.” 420 A
motivating concern for the Supreme Court in Hines was that a state might
use the registration requirement at issue there to harass aliens. 421 Allowing
state law enforcement officials to arrest aliens who have not been admitted
but who may be eligible for various status determinations that would allow
them to remain in the United States raises the same concerns expressed in
Hines.
         Director Martin cites § 1357(g) as evidence of state-federal
cooperation that allows states “wide latitude” to “prosecute crimes
involving illegal entry and removal.” But the Supreme Court addressed a
similar argument in Arizona when analyzing § 6 of S. B. 1070, which
authorized state officers to arrest a person if the officer had probable cause to
believe that person was removable. 422 The Supreme Court explained that
“no coherent understanding of the term [cooperation] would incorporate the
unilateral decision of state officers to arrest an alien for being removable
absent any request, approval, or other instruction from the Federal
Government.” 423 The same logic applies to S. B. 4’s entry provisions.
Allowing Texas to detain aliens “without any input from the Federal




         _____________________
         420
               Arizona v. United States, 

 (2012).
         421
             See Hines v. Davidowitz, 

 (1941) (concluding that Congress
manifested an intent to impose a uniform registration system to leave aliens “free from the
possibility of inquisitorial practices and police surveillance”).
         422
               Arizona, 

.
         423
               

.




                                                86
                                       No. 24-50149


Government about whether an arrest is warranted in a particular
case . . . would allow the State to achieve its own immigration policy.” 424
        Director Martin emphasizes the Supreme Court’s decision in Kansas
v. Garcia. 425 In Garcia, the Court held that a Kansas law criminalizing the
fraudulent use of another person’s identifying information was not conflict
preempted when applied to aliens who used false identities on work forms. 426
The challengers claimed the conflict arose from upsetting federal
prosecutorial discretion and enforcement priorities given federal laws
criminalizing the same conduct. 427 The Court explained that “there is no
basis for inferring that federal criminal statutes preempt state laws whenever
they overlap.” 428 But our conclusion here does not depend one whit on
S. B. 4’s overlap with its federal criminal analogues. Our discussion above
identifies the many ways in which S. B. 4 conflicts with a variety of different
statutes.
        Director Martin contends that “S.B.4’s directive not to abate
prosecution” pending applications for asylum or other relief “does not
require removal,” and that “S.B.4 does not prevent state officers from
coordinating with federal immigration authorities” while those applications
are pending. S. B. 4, however, states that a judge “shall” enter a removal
order “[o]n a person’s conviction of an offense under Chapter 51,” and that
order will “take[] effect on completion of the term of confinement or
        _____________________
        424
           

; see also United States v. Texas, 

 (2023) (Alito, J.,
dissenting) (“Texas’s entry into the Union stripped it of the power that it undoubtedly
enjoyed as a sovereign nation to police its borders and regulate the entry of aliens.”).
        425
              

 (2020).
        426
              

.
        427
              

.
        428
              

.




                                            87
                                         No. 24-50149


imprisonment imposed by the judgment.” 429 Because “[a] court may not
abate the prosecution of an offense under Chapter 51 . . . on the basis that a
federal determination regarding the immigration status of the defendant is
pending or will be initiated,” 430 a defendant with an unresolved claim for
federal immigration relief will be pushed toward removal regardless of the
status of their claim. No amount of “coordinating with federal immigration
authorities” can soothe this conflict.
       In sum, there are “significant complexities” in determining an alien’s
immigration status. 431 S. B. 4 runs roughshod over them. Las Americas is
likely to succeed as to its contention that the entry and removal provisions
are conflict preempted.
                                              D
       In a facial challenge to a legislative act, “the challenger must establish
that no set of circumstances exists under which the Act would be valid.” 432
Director Martin posits that the district court erred by granting a preliminary
injunction in this facial challenge because some applications of S. B. 4 are
valid. The Director’s argument for why S. B. 4 would be valid relates to the
State’s contention that it has been invaded and has the right to defend itself.
Director Martin asserts that Article I, § 10 of the Constitution (the State War
Clause) permits some applications of S. B. 4.                      The State War Clause
provides:
       No State shall, without the Consent of Congress, lay any Duty
       of Tonnage, keep Troops, or Ships of War in time of Peace,
       _____________________
       429
             Tex. Code Crim. Proc. art. 5B.002(d).
       430
             Id. art. 5B.003.
       431
             Arizona v. United States, 

 (2012).
       432
             United States v. Salerno, 

 (1987).




                                              88
                                         No. 24-50149


       enter into any Agreement or Compact with another State, or
       with a foreign Power, or engage in War, unless actually
       invaded, or in such imminent Danger as will not admit of
       delay. 433
Specifically, Director Martin contends that, at a minimum, S. B. 4’s
application to transnational cartel members is a constitutionally authorized
response to an “invasion,” and federal statutes cannot “preempt a State’s
effort to defend itself.”
       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. The
Supreme Court recently framed the State War Clause as divesting the states
of power whereas “the Constitution’s text . . . strongly suggests a complete
delegation of authority to the Federal Government to provide for the
common defense.” 434 It seems strange that a state could rely on this
Clause—which, with limited exceptions, primarily divests states of power—
as a defense to a suit seeking to vindicate the Supremacy Clause, especially
in an area of regulation that the Supreme Court has consistently reiterated is
exclusively a federal power. 435                One would expect a contemporary
commentator to have noticed such a proposition. Instead, in The Federalist
No. 44, James Madison glossed over the relevant portion of the State War
Clause by writing: “The remaining particulars of this clause fall within




       _____________________
       433
             U.S. Const. art. I, § 10, cl. 3.
       434
             Torres v. Tex. Dep’t of Pub. Safety, 

 (2022).
       435
             See supra note 267 and accompanying text.




                                                89
                                           No. 24-50149


reasonings which are either so obvious, or have been so fully developed, that
they may be passed over without remark.” 436
         Las Americas has persuaded us that it is likely to succeed on the merits
despite Texas’s State War Clause arguments.
                                              * * *
         In sum, Las Americas is likely to succeed on the merits of its
preemption claims. There is considerable authority supporting that the core
provisions of S. B. 4 are field, or alternatively, conflict preempted by federal
law. We are also persuaded that the State War Clause likely does not compel
a contrary result.
                                                VI
         The remaining preliminary injunction factors require the plaintiff to
demonstrate “[2] that he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” 437                  They weigh in favor of a
preliminary injunction.
         The harm that Las Americas will likely suffer if Director Martin
enforces the new immigration laws—considered above in subpart II(A)—is
irreparable under our precedents. 438 To summarize, the harm is that the time

         _____________________
         436
               The Federalist No. 44, at 283 (James Madison) (Clinton Rossiter ed.,
1961).
         437
               Winter v. Nat. Res. Def. Council, Inc., 

 (2008).
         438
           See Clarke v. Commodity Futures Trading Comm’n, 

 (5th Cir.
2023) (noting that economic harms were irreparable because “the [defendant] cannot be
sued due to its sovereign immunity,” as here (citing Wages & White Lion Invs., L.L.C. v.
FDA, 

 (5th Cir. 2021))); Rest. L. Ctr. v. U.S. Dep’t of Lab., 

 (5th Cir. 2023) (noting that “nonrecoverable compliance costs are usually




                                                 90
                                        No. 24-50149


and expense Las Americas would expend representing immigrants detained
under preempted Texas laws could never be regained. Its expenditures of
actual costs in paying its employees to represent those improperly entangled
in a state immigration regimes also come at the expense of cutting back its
representation of clients navigating only the federal regime. These losses
cannot be recouped.
        We weigh the risk of irreparable harm to the Director. We recognize
that “any time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable
injury.” 439 Furthermore, the new immigration laws are intended to protect
the citizens of Texas.
        There are countervailing public interest considerations, however.
There is a high risk that enforcement of S. B. 4 would cause international
friction. Mexico—the United States’ largest trading partner 440—has already
protested S. B. 4 and signaled that the statute’s enforcement would frustrate
bilateral efforts, including alien removals. 441 The Supreme Court has said
that “repeated representations by the Executive Branch supported by formal
diplomatic protests and concrete disputes are more than sufficient to
        _____________________
irreparable harm”); Wages & White Lion Invs., L.L.C., 

 (“Indeed,
complying with [an agency order] later held invalid almost always produces the irreparable
harm of nonrecoverable compliance costs.” (alteration in original) (quoting Texas v. EPA,

 (5th Cir. 2016))); see also Texas, 

 (noting that when
analyzing whether costs constitute irreparable harm, “it is not so much the magnitude but
the irreparability that counts” (quoting Enter. Int’l, Inc. v. Corporacion Estatal Petrolera
Ecuatoriana, 

 (5th Cir. 1985))).
        439
       New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 

 (1977)
(Rehnquist, J., in chambers).
        440
              See United States v. Texas, 

, 696 (W.D. Tex. 2024).
        441
           See 

; Br. of the Government of the United Mexican States as Amicus
Curiae 11-12; ROA.133-34 (Declaration of Eric Jacobstein).




                                              91
                                        No. 24-50149


demonstrate that the state Act stands in the way of Congress’s diplomatic
objectives.” 442
       The enforcement of S. B. 4 also risks taking the United States out of
compliance with its treaty obligations. Under the CAT, for example, “[n]o
State Party shall expel, return (‘refouler’) or extradite a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.” 443 S. B. 4 provides an affirmative
defense if the United States has granted asylum to the defendant.444
However, an alien whose meritorious CAT claim has not yet been
adjudicated may still be refouled under S. B. 4 in violation of the CAT.
       There are competing public interest considerations in permitting
Director Martin to implement the arrest and removal provisions of the new
Texas immigration laws. However, the Supreme Court explained in Hines v.
Davidowitz that state and local interests are subservient to those of the nation
at large, at least with regard to matters regarding foreign relations:
       The Federal Government, representing as it does the collective
       interests of the forty-eight states, is entrusted with full and
       exclusive responsibility for the conduct of affairs with foreign
       sovereignties. “For local interests the several states of the
       Union exist, but for national purposes, embracing our relations
       with foreign nations, we are but one people, one nation, one
       power.” Our system of government is such that the interest of
       the cities, counties and states, no less than the interest of the
       people of the whole nation, imperatively requires that federal
       power in the field affecting foreign relations be left entirely free

       _____________________
       442
             Crosby v. Nat’l Foreign Trade Council, 

 (2000).
       443
          U.N. Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.
       444
             Tex. Penal Code § 51.02(c).




                                             92
                                       No. 24-50149


        from local interference. As Mr. Justice Miller well observed of
        a California statute burdening immigration: “If (the United
        States) should get into a difficulty which would lead to war, or
        to suspension of intercourse, would California alone suffer, or
        all the Union?” 445
        The harms counsel that the equities weigh in favor of a preliminary
injunction.
                                            VII
        On June 27, 2025, the Supreme Court issued its decision in Trump v.
CASA, Inc. 446 It held that the Government is likely to succeed on its
argument that under the Judiciary Act of 1789, federal courts do not have
equitable authority to issue “universal injunctions.” 447 The Court discussed
the limits of injunctive relief that federal courts may provide under that
statute. Neither our court nor the district court has had the benefit of briefing
regarding the impact of the Trump v. CASA decision as to the preliminary
injunctive relief the district court granted in this case. Like the Supreme
Court in Trump v. CASA, we “decline to take up . . . in the first instance”
arguments as to the permissible scope of injunctive relief in the present
case. 448 “[W]e therefore leave it” to the district court to consider any
arguments the parties may present in this regard. 449




        _____________________
        445
           

 (1941) (footnotes omitted) (first quoting Ping v. United States,

 (1889); and then quoting Chy Lung v. Freeman, 

 (1875)).
        446
              ___ S. Ct. ___, 

 (2025).
        447
              Id. at *6.
        448
              Id. at *12.
        449
              Id.




                                             93
                                 No. 24-50149


                             *        *         *
     The district court’s grant of a preliminary injunction against Director
Martin is AFFIRMED.




                                     94
                                  No. 24-50149


Andrew S. Oldham, Circuit Judge, dissenting:
       Today’s majority usurps the State of Texas’s sovereign right to police
its border and to battle illegal immigration. In doing so, it underrules the
Supreme Court’s standing doctrine. It defenestrates our rule of orderliness.
It turns upside down the standards for preliminary injunctions and facial pre-
enforcement review. It finds that Congress somehow preempted the field of
immigration—by affirmatively authorizing States to participate in it. And it
subverts the other preliminary-injunction factors by holding, for example,
that the Biden Administration’s criticisms of Texas create a public interest
in facially enjoining all applications of the State’s immigration law—while the
Trump Administration’s partnership with Texas to battle the immigration
crisis is irrelevant.
                                       *
       Much more could be said about the errors our court commits today.
But as it stands, Texas is suffering irreparable injury with each day a federal
court stands between the State and enforcement of its law. A trial date is
looming. And the majority has held this case for fifteen months. I do not want
to exacerbate these problems. So this is the best I could do in the short time
allotted.
       Part I discusses the crisis at the southern border, Texas’s place at the
epicenter of it, and the State’s decision to enact a landmark immigration law
called “Senate Bill 4” or “S.B. 4.” Part II explains that the majority flouts
Supreme Court precedent by recognizing the private plaintiffs’ standing to
challenge S.B. 4’s enforcement. Part III explains that El Paso County’s
theory of standing is equally unavailing. Part IV explains that plaintiffs lack a
cause of action. Part V explains that Texas’s laws are neither field nor conflict
preempted. Part VI discusses the remaining preliminary-injunction factors.
       I respectfully but emphatically dissent.




                                       95
                                No. 24-50149


                                      I
                                     A
       The United States is in the throes of an immigration “crisis.”
Statement from President Joe Biden on the Bipartisan Senate Border Security
Negotiations, The White House ( Jan. 26, 2024), https://perma.cc/
K9S8-TLZV; see also Declaring a National Emergency at the Southern
Border of the United States, Proclamation No. 10886, 

 (Jan.
20, 2025). From 2021 to 2024, millions upon millions of aliens illegally
streamed across the U.S.–Mexico border. See Southwest Land Border
Encounters, U.S. Customs & Border Prot. (May 12, 2025),
https://perma.cc/XNW9-6TAL; see also ROA.215, 283, 376. To put the
numbers into perspective, when this case was filed in December 2023,
Customs and Border Protection (“CBP”) had over 300,000 encounters with
aliens at the border in that month alone. See Southwest Land Border
Encounters, supra; ROA.330. In February 2025, the first full month after
President Biden left office, there were only 11,710 border encounters. See
Southwest Land Border Encounters, supra. That is an astonishing 96 percent
reduction, and the numbers have remained at that low level since. See ibid.
       Many of the aliens who illegally entered the United States during the
Biden Administration have disappeared into the country’s interior. Out of
the millions who were stopped, cited, and told to wait for removal
proceedings in our overburdened immigration system over the past four
years, see ibid.; see also Southwest Land Border Encounters FY22, U.S.
Customs & Border Prot. (Feb. 12, 2025), https://perma.cc/F693-
T7VS, as many as 85 percent were released pending proceedings, ROA.377.
For comparison, in President Trump’s first 100 days in office, only nine
aliens were released into the country pending removal proceedings. See




                                     96
                                  No. 24-50149


Promises Made, Promises Kept: Border Security Achieved in Fewer than 100 Days,
The White House (Apr. 28, 2025), https://perma.cc/438F-9NRH.
       During the Biden Administration, innumerable aliens were never
encountered at all. These “gotaways” evaded law enforcement and now live
throughout the country without having ever been screened by immigration
officials. See Adam Shaw & Bill Melugin, New Data Reveals Illegal Immigrants
Eluding Border Patrol Spiked Under Biden, Surpassing Predecessors, Fox
News (May 15, 2024), https://perma.cc/D9N5-U7U8. Over the past four
years, an estimated 1.7 million gotaways entered the United States—more
than the total number that entered the country over the entire preceding
decade. See ibid. (relying on records received from the Federal Government
under FOIA). The upshot is this: Today “[w]e have limited information on
the precise whereabouts of a great number of the[] illegal immigrants” who
streamed across the border “over the last 4 years.” See Securing Our
Borders, Exec. Order No. 14165, 

, 8467 (Jan. 20, 2025).
       The risks posed by these millions of “gotaways” are impossible to
overstate—precisely because we know nothing about them. Untold numbers
of “potential terrorists, foreign spies, members of cartels, gangs, and violent
transnational criminal organizations, and other hostile actors with malicious
intent” now reside in the United States. 

       For instance, from 2021 to 2024, Border Patrol “encountered 336
persons on the terrorist watchlist” at the southern border, “up from 15 of
such individuals” over the previous four years. ROA.285. Not all have been
caught and sent back either. The FBI continues to try “to locate” some “on
the terrorist watchlist who have illegally crossed into the U.S.” Ibid.; see also
ICE Arrests 11 Iranian Nationals Illegally in the U.S. over the Weekend,
Homeland Sec. (June 24, 2025), https://perma.cc/6QB2-QGA9
(highlighting the arrests of “an individual with admitted ties to Hezbollah, a




                                       97
                                 No. 24-50149


known or suspected terrorist, and an alleged former sniper for the Iranian
army”). And the foreign terrorist organization Tren de Aragua has infiltrated
the United States, conducted widespread narco-terrorism at the behest of the
Venezuelan government, and taken over apartment complexes. See
Invocation of the Alien Enemies Act Regarding the Invasion of the United
States by Tren de Aragua, Proclamation No. 10,903, 

(Mar. 14, 2025).
       Gang members have also flooded into the country. See ROA.285. That
should be no surprise since much of the southern border is controlled by the
cartels, see Declaring a National Emergency at the Southern Border, 90 Fed.
Reg. at 8327, “potent paramilitary forces, with heavily armed mobile units
able to stand their ground against the Mexican military,” ROA.216 (quoting
William P. Barr, The U.S. Must Defeat Mexico’s Drug Cartels, Wall St. J.
(Mar. 2, 2023), https://perma.cc/555D-S96J); see also ROA.711. Cartel
members have been found on various occasions marching across the border
in “body armor, . . . armed with rifles and tactical gear.” Victor Nava, Armed
Men Believed to Be Mexican Cartel Members Wearing Body Armor Spotted
Crossing Southern Border into Texas, N.Y. Post (Aug. 8, 2023),
https://perma.cc/7CQY-769A. Not only do these cartels look “more like
ISIS than like the American mafia.” ROA.216 (quoting Barr, supra); see also
ROA.712 (comments of Ezra, J., at preliminary-injunction hearing) (“[T]he
stuff that these cartels do to human beings is like a training manual for ISIS.
I mean, these are vicious, bad people. . . . I sentenced a guy who worked for
the cartels who admitted to over 40 murders, but the FBI said that was a
fraction of what he actually did. Bad people.”). They also appear to have
“ISIS ties.” Katie Pavlich, FBI Director Confirms Prison Gangs and Islamic
Terrorists Are Exploiting the Border, Townhall (Mar. 11, 2024),
https://perma.cc/BSX2-UER9.




                                      98
                                  No. 24-50149


       Cartel members are not the only gang members who have illegally
entered the country. In fiscal year 2024 alone, CBP apprehended 523 gang
members from over 20 different gangs. See CBP Enforcement Statistics, U.S.
Customs & Border Prot. (Apr. 22, 2025), https://perma.cc/M5KP-
NH7Y; see also ROA.296–98 (showing the same pattern in previous years).
Seventy-two of those individuals were affiliated with MS-13, CBP
Enforcement Statistics, supra, whose “motto is ‘kill, rape, control,’” Dep’t
of Just., Fact Sheet on MS-13, at 1 (2017). In pursuit of such evils,
MS-13 sends “representatives to cross into the U.S. illegally, to gain control
of local MS-13 cliques and reconstitute them.” Ibid. That leads “the
American MS-13 cliques to become more violent.” Id. at 2. Not only do they
“kill[] rivals”; they also “extort[] legitimate businesses run by legal Central
American immigrants.” Ibid.
       CBP has also encountered other criminals. In just the last fiscal year,
for instance, CBP had almost 40,000 encounters with aliens who had
criminal convictions or outstanding warrants, CBP Enforcement Statistics,
supra, and Border Patrol made over 17,000 arrests, Criminal Alien Statistics,
U.S. Customs & Border Prot. (Apr. 14, 2025), https://perma.cc/
ZY5T-SD8V; see also ROA.285, 291.
       This flood of terrorists, gang members, and criminals has carried with
it “[d]eadly narcotics and other illicit materials.” Securing Our Borders, 90
Fed. Reg. at 8467. In each of the past three fiscal years, well over 500,000
pounds of illicit drugs were seized by border officials. Drug Seizure Statistics,
U.S. Customs & Border Prot. (Apr. 14, 2025), https://perma.cc/
5DVV-PTKR. And in the past four fiscal years combined, enough fentanyl
poured into the country to kill every single person on the entire planet
“nearly twice over.” See California Seizes Record 62,000 Pounds of Fentanyl,
Governor Gavin Newsom, https://perma.cc/MA2M-B8P3; see also
Facts About Fentanyl, U.S. Drug Enf’t Agency, https://perma.cc/



                                       99
                                 No. 24-50149


Q36W-CH8Q (noting that a lethal dose of fentanyl can be about 2 mg); see
Drug Seizure Statistics, supra (revealing that more than 60,000 pounds of
fentanyl crossed our southern border in the past four fiscal years). Naturally,
“fentanyl” has become “the leading cause of death for citizens between the
ages of 18 and 45,” and as a whole, “the national drug overdose death toll”
reached peak numbers in 2023. ROA.286.
       Deadly narcotics are not the only illicit materials that have poured in.
Thousands upon thousands of guns and explosives have also crossed the
southern border. See ROA.241, 302–03; see also Weapons and Ammunition
Seizures, U.S. Customs & Border Prot. (Apr. 14, 2025),
https://perma.cc/WB3D-DPE6. To make matters worse, the cartels launder
the profits from all this illicit smuggling through Chinese money-laundering
syndicates. Dylan Tokar, Justin Baer & Vipal Monga, Bags of Cash from Drug
Cartels Flood Teller Windows at U.S. Banks, Wall St. J. (May 14, 2025),
https://perma.cc/F3A9-EYGM.
       As if this deluge of crime and terror were not enough, illegal
immigration has also given rise to serious public health concerns. When
immigrants use the visa system, they “are screened for” any health issue that
might threaten the public. Guaranteeing the States Protection Against
Invasion, Proclamation No. 10888, 

, 8333 (Jan. 20, 2025).
So if an alien applying for a visa has “a communicable disease of public health
significance” or “has failed to present documentation of having received
vaccination against vaccine-preventable diseases,” such as “mumps,”
“measles,” or “hepatitis B,” he is prevented from entering until he becomes
eligible to be admitted. See 

(a)(1)(A). So too if an alien has “a
mental disorder” that may threaten people’s “property, safety, or welfare.”

 But the Government is obviously incapable of screening gotaways to
prevent the spread of “communicable diseases of public-health concern.”




                                      100
                                  No. 24-50149


Guaranteeing the States Protection Against Invasion, 90 Fed Reg. at 8334.
Nor can it prevent mentally unstable gotaways from entering our country.
       The human cost of this crisis is hard to fathom. For example, in
January 2024, a six-year-old girl in Dallas was shot and killed by an illegal
alien. ROA.346. And in 2023, in Cleveland, Texas, another criminal alien
brutally murdered five people, including a young boy. See ROA.347.
Innumerable Texans have died from the drugs that cartels have trafficked
across the border. And as the criminals, gang members, and terrorists fade
further from the Government’s view with time, the promise of future crime
and violence becomes surer.
       Illegal immigration also poses grave danger to aliens. The past four
years saw a significant increase in “migrant mortalities.” ROA.284. In fiscal
year 2023, “in just the El Paso Sector,” “148 migrants died . . . while
attempting border crossings.” ROA.284. And since 2021, well over 2,000
migrants have died while attempting to illegally cross our borders. ROA.284.
And that is not to mention the innumerable people abused and trafficked at
the border. See ROA.216–18; ROA.1017–21.
       But perhaps the best illustration of the human cost of illegal
immigration is the plight of unaccompanied minors. In 2023, 118,938
unaccompanied minors crossed the border, up from only 15,381 in 2020. See
ROA.284. “[T]he majority of” these minors crossed the border through
“very dangerous, not-nice, human-smuggling networks.” Remarks to the
Press with Q&A by Vice President Joe Biden in Guatemala, The White
House (June 20, 2014), https://perma.cc/G8JK-9H28. The smugglers
often sell these child migrants into “forced labor or prostitution . . . in order
to recover their costs.” William A. Kandel et al., Cong. Rsch.
Serv., R43628, Unaccompanied Alien Children: Potential
Factors Contributing to Recent Immigration 10 (2014).




                                      101
                                   No. 24-50149


Other children have simply been left in the middle of the desert to perish.
The victims include the most “vulnerable.” See Ali Bradley, Abandoned 2-
Month-Old Found by Rio Grande Border Patrol, NewsNation (Sep. 26,
2023), https://perma.cc/Q5GE-UA4X (recounting the story of Border
Patrol rendering emergency medical aid to a 2-month-old baby abandoned at
the southern border). Not long ago, for instance, Border Patrol agents
rescued “two female tender-aged toddlers,” who were “dropp[ed]” by two
smugglers “from the top of the approximately 14-foot-high border barrier”
and “abandoned.” U.S. Border Patrol Rescues Toddlers Dropped by Smuggler
over   Border    Barrier,   U.S.      Customs       &     Border       Prot.,
https://perma.cc/UCJ7-62KD (Jan. 28, 2025). Others have been less
fortunate. See Chantal Da Silva, 2 Children Dead, Baby in Critical Condition
After Attempted Border Crossings, NBC News (Aug. 24, 2022),
https://perma.cc/VH8W-J9DH.
                                        B
                                        1
       At “the epicenter” of this border crisis stands the State of Texas.
Texas v. U.S. Dep’t of Homeland Sec., 

, 193 (5th Cir. 2024).
Texas and Mexico share about two-thirds of the nearly 2000-mile southern
border. As a result, approximately half of the immigrants who have crossed
the southern border have crossed into Texas. See Br. of Amici Curiae
America’s Future et al. at 17 (claiming that “in fiscal year 2023 alone, nearly
2 million illegal aliens poured over Texas’ border, some 50 percent of all
illegal U.S. border crossings”). This “spike in illegal migration” has placed
“counties along the southern border” in “a continuous state of disaster.”
ROA.286.
       Texas has responded to the crisis by spending more than $11 billion of
its citizens’ money to secure the southern border. See 

 The State has built




                                       102
                                      No. 24-50149


border walls, deployed Texas military officers “to fill border staffing
deficits,” and bussed immigrants to other jurisdictions. See ROA.286–87. It
has also trained and reimbursed local law enforcement. See infra, at 123–24,
126. These efforts over the past four years have led to 533,800 alien
apprehensions and more than 54,300 criminal arrests, resulting in more than
45,800 felony charges. See Operation Lone Star Seizes $2.4 Million Worth of
Methamphetamine, Off. of the Tex. Governor (June 20, 2025),
https://perma.cc/9PUQ-LQUK. And it has led to the seizure of 735 million
lethal doses of fentanyl. See 

                                           2
       As part of its effort to secure its border and protect Texans, the State
of Texas passed S.B. 4. See Acts 2023, 88th Leg., 4th C.S., ch. 2, § 2 (eff.
Mar. 5, 2024) (“S.B. 4”). That law is the subject of this appeal. Three of its
provisions merit introduction.
       First, S.B. 4 makes it “an offense” for a person to “enter[] or
attempt[] to enter” the State of Texas “directly from a foreign nation at any
location other than a lawful port of entry.” Tex. Penal Code § 51.02(a);
compare 

(a) (prohibiting entry or attempted entry into “the
United States at any time or place other than as designated by immigration
officers”). Several affirmative defenses tether this provision to federal law.
See Tex. Penal Code § 51.02(c). For example, it is a defense to
prosecution if “the federal government has granted the defendant” either
“lawful presence in the United States” or “asylum.” Id. § 51.02(c)(1). In
addition, it is a defense if “the defendant’s conduct does not constitute a
violation of 

(a).” 

 § 51.02(c)(2).
       Second, S.B. 4 makes it unlawful for “an alien” to “enter[], attempt[]
to enter, or [be] at any time found” in the State of Texas if that alien has
previously (1) “been denied admission to or excluded, deported, or removed




                                          103
                                  No. 24-50149


from the United States,” or (2) “departed from the United States while an
order of exclusion, deportation, or removal is outstanding.” Id. § 51.03(a).
This provision, too, mirrors federal law. See 

(a) (making it an
offense for an alien to “enter[], attempt[] to enter, or [be] at any time found
in, the United States,” if that alien “has been denied admission, excluded,
deported, or removed or has departed the United States while an order of
exclusion, deportation, or removal is outstanding”).
       I refer to these first two provisions together as S.B. 4’s “arrest
provisions.”
       Third, S.B. 4 empowers state courts to enter return orders. If an alien
charged with one of the above two offenses “agrees to the order,” the state
court may enter an ordering “requir[ing] the person to return to the foreign
nation from which the person entered or attempted to enter.” Tex. Code
Crim. Proc. art. 5B.002(c). If instead the alien is convicted of one of those
offenses, “the judge shall enter in the judgment in the case an order requiring
the person to return to the foreign nation from which the person entered or
attempted to enter.” 

 art. 5B.002(d). These bear some similarity to orders
of removal that federal immigration judges can enter, see 8 U.S.C.
§§ 1229a(d), 1229a(c)(1)(A), but it is entirely unclear whether a return order
requires physically removing the alien to a foreign nation or simply turning
him over to federal officials at a port of entry. See infra, at 164–65.
       I refer to these provisions as S.B. 4’s “return provisions.”
                                        3
       A single day after S.B. 4 was enacted, and months before it would
become effective or operate against anyone, plaintiffs rushed to the
courthouse. The Las Americas Immigrant Advocacy Center (“Las
Americas”), American Gateways, and El Paso County, Texas, filed a pre-




                                       104
                                      No. 24-50149


enforcement suit against the Director of the Texas Department of Public
Safety (“DPS”), Freeman Martin. 1
        The plaintiffs requested a declaration that “S.B. 4 is unlawful in its
entirety,” and sought a facial pre-enforcement injunction against S.B. 4’s
application to anyone under any circumstances. ROA.809. The plaintiffs
claimed entitlement to such extraordinary relief on the grounds that S.B. 4
was preempted by the Immigration and Nationality Act (“INA”), the
statutory scheme S.B. 4 mirrors.
        Before S.B. 4 even became effective or could be enforced against a
single alien, the district court entered a preliminary injunction. See United
States v. Texas, 

, 651 (W.D. Tex. Feb. 29, 2024). As
relevant here, the court concluded that S.B. 4 was impliedly preempted by
federal law. See 

 at 663–79. So the district court issued the broadest relief
imaginable. As the district court put it, “the Court will enjoin the law in full
and prohibit Defendants and their officers, agents, and employees from
enforcing any provision of SB 4.” Id. at 699. The injunction thus not only
blocked the defendants’ enforcement of S.B. 4 against any individual (even
nonparties); it also blocked enforcement of numerous provisions in S.B. 4 the
parties never even challenged, much less cited or mentioned. See, e.g., Tex.
Civ. Prac. & Rem. Code §§ 117.001, .002, .003, .004, .005; Tex.




        _____________________
        1
           Plaintiffs sued the previous DPS Director, Steven McCraw, in his official
capacity. Director Martin replaced McCraw in December 2024. Plaintiffs also sued a state
district attorney, but this court granted his motion to voluntarily dismiss his appeal. In
addition, the United States filed a separate suit. The cases were consolidated. But after
President Trump took office, and while appeal was pending, the United States voluntarily
dismissed its suit. See Fed. R. Civ. P. 41(a)(1)(A)(i). That case is thus moot. See Acheson
Hotels, LLC v. Laufer, 

 (2023).




                                           105
                                        No. 24-50149


Gov’t Code § 508.149; Tex. Code Crim. Proc. arts. 5B.001,
42A.059, 66.102. The DPS Director immediately appealed. 2
                                              II
        As always, jurisdiction first.
        The Supreme Court recently reminded our court that we must be
careful in holding plaintiffs to their burden to establish standing. See Murthy
v. Missouri, 

 (2024). Standing is “a bedrock constitutional
requirement.” United States v. Texas, 

 (2023). It “help[s]
ensure that the plaintiff has such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court jurisdiction.”
Murthy, 

 (quotation omitted); see also Diamond Alt. Energy,
LLC v. EPA, 606 U.S. ---, --- (2025), 

, at *6 (“[P]laintiffs
must show that they . . . are not mere bystanders.”). And it “helps safeguard
the Judiciary’s proper—and properly limited—role.” Texas, 599 U.S. at 675–
76. Thus, “[t]he proper approach” to standing has long been “to ‘presume
that federal courts lack jurisdiction unless the contrary appears affirmatively
from the record.’” John G. Roberts, Jr., Article III Limits on Statutory
Standing, 

, 1225–26 (1993) (quoting Renne v. Geary, 

 (1991)).
        Adopting plaintiffs’ main theory of standing would contravene these
basic principles. Here, I (A) explain that FDA v. Alliance for Hippocratic

        _____________________
        2
           While the case was on appeal, the district court entered an order
“clarify[ing]/modify[ing] the scope of” the preliminary injunction. Although that order
appeared to violate the “longstanding tenet of American procedure” that “[a]n appeal,
including an interlocutory appeal, ‘divests the district court of its control over those aspects
of the case involved in the appeal,’” Coinbase, Inc. v. Bielski, 

 (2023)
(quoting Griggs v. Provident Consumer Discount Co., 

 (1982)), any
modifications are not material here. So I do not address this issue further.




                                              106
                                       No. 24-50149


Medicine, 

 (2024), forecloses the plaintiffs’ theory of standing.
Then, I (B) offer some responses to the majority’s contrary holding.
                                             A
        Las Americas is an organization that opposes S.B. 4’s operation on
illegal immigration and that provides legal and counseling services to illegal
immigrants. Its main theory of standing relies on an expansive reading of
organizational standing in Havens Realty Corp. v. Coleman, 

(1982). 3 But just last Term, in Alliance for Hippocratic Medicine, the Supreme
Court emphatically and unanimously told us not to expand organizational
standing. See 

. The majority nonetheless expands Havens,
ignores Alliance, and thus turns standing doctrine on its head.
                                              1
        Start with Havens. In that case, the plaintiff organization, HOME,
had standing only because “Havens’s actions directly affected and interfered
with HOME’s core business activities.” 

. Specifically, Havens lied
directly to the plaintiff about the availability of housing. 

 HOME itself
was the victim because HOME itself was injured by the lie. So Havens
“directly affected and interfered with” the plaintiff’s counseling services
concerning the availability of housing. 

        Why is direct impact or direct interference so central to the Havens
analysis? The point cannot be overemphasized: “[O]rganizations must
satisfy the usual standards for” standing. 

 at 393–94. That includes classic
principles of standing, like “when the plaintiff is not himself the object of the
government action or inaction he challenges,” standing is “substantially

        _____________________
        3
          Because the majority focuses only on Las Americas, so do I. But all three plaintiffs
offer similar theories of standing.




                                             107
                                  No. 24-50149


more difficult to establish.” Lujan v. Defs. of Wildlife, 

(1992).
       Plaintiffs cannot dodge those difficulties—as they try to do here—by
voluntarily altering their activities in response to government action. See
Clapper v. Amnesty Int’l USA, 

, 417–18 (2013) (explaining that
such “self-inflicted” injuries cannot ground Article III standing). So just as
an individual who earnestly desires to counsel immigrants in his free time
cannot complain that some new law will lead him to spend resources to
counsel those immigrants more effectively, so too a political organization
cannot. That is true regardless of “the intensity of” either party’s “interest
or the fervor of his advocacy.” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 

 (1982).
       Rather, plaintiffs generally need what HOME had—an action by the
defendant against the plaintiff “directly.” All. for Hippocratic Med., 

. There it was a lie told by the defendant to the plaintiff. So, as Alliance
for Hippocratic Medicine emphasized, HOME’s theory of standing was just
like that of “a retailer who sues a manufacturer for selling [it] defective
goods.” 

. In both cases, the defendant has a direct relationship with
the plaintiff, and that defendant’s actions directly affect and interfere with
the plaintiffs’ operations. In other words, Havens was a traditional case
involving a plaintiff who complains that a defendant has imposed a direct
injury (like a lie) on him.
       In this case, by contrast, S.B. 4 does absolutely nothing directly to the
plaintiffs, nor will it in any way be directly enforced against them. This is a
modern public-law dispute where one party complains about governmental
regulation of third parties. The plaintiffs complain about Director Martin’s
threatened actions against immigrants not before the court. They do not
allege anyone has plans to arrest Las Americas, charge El Paso County with




                                       108
                                  No. 24-50149


a misdemeanor, or enter a return order against American Gateways. In other
words, the impact on the plaintiffs is wholly indirect. So this case is nowhere
close to Havens.
       To the contrary, it is squarely governed by Alliance for Hippocratic
Medicine. In that case, the Supreme Court considered whether an
organization had standing where it (1) was not the object of an FDA
regulation but (2) would incur indirect costs by its voluntary choice to serve
clients who were the object of the regulation. See 

. The Court
unanimously held no. See 

       What of the organizations’ invocation of Havens? The organizations
in Alliance for Hippocratic Medicine contended that their standing was fully
consistent with Havens because the FDA’s actions would “force[]” them to
spend money, to educate their members, and to expend organizational
resources that would otherwise be devoted to their core missions. 

 In
rejecting the organizations’ argument, the Supreme Court admonished us
that “Havens was an unusual case, and this Court has been careful not to
extend the Havens holding beyond its context.” 

. If that is not a
specific instruction to limit Havens to its facts, I do not know what is. Cf.
Egbert v. Boule, 

, 491–92 (2022) (“[R]ecognizing a cause of
action under [Bivens v. Six Unknown Fed. Narcotics Agents, 

(1971)] is a disfavored judicial activity.” (quotation omitted)); see also Goldey
v. Fields, 606 U.S. --- (2025), 

 (summarily reversing an
appeals court that found a plaintiff had a cause of action under Bivens).
       For reasons I cannot understand, however, the plaintiffs and the
majority have quite literally copied and pasted the theory of standing that the
Alliance Court so emphatically rejected. Compare the Las Americas Brief and
the majority’s opinion to the Supreme Court’s holding in Alliance for
Hippocratic Medicine:




                                      109
                                        No. 24-50149


        • Plaintiffs: Standing exists under Havens because they will
          “divert substantial resources” in response to Director
          Martin’s enforcement of S.B. 4 against third parties. Br. for
          Plaintiff–Appellee Las Americas (“Las Americas Br.”) at
          13. 4

        • Today’s majority: Las Americas has standing because
          S.B. 4’s enforcement will cause it “to divert its resources.”
          Ante, at 14; see also, e.g., id. at 16 (explaining that “S. B. 4
          has already forced [Las Americas] to divert [its] limited
          resources” (quotation omitted)); id. at 17 (noting that in
          response to S.B. 4’s enforcement, “Las Americas’ services
          will necessarily require diverting funding and staff time”).

        • Supreme Court: “The medical associations respond that
          under Havens Realty Corp. v. Coleman, standing exists when
          an organization diverts its resources in response to a
          defendant’s actions. That is incorrect.” All. for Hippocratic
          Med., 

 (emphasis added); see also Tr. of Oral
          Arg. at 19, All. for Hippocratic Med., 

 (No. 23–
          235) (Barrett, J.) (noting that this theory of standing
          mirrored “the kinds of allegations [courts] see by
          immigration advocacy groups,” i.e., “diversion of
          resources, increased expenses that result from the
          complications of having to address and explain . . .
          changes” to immigration policy).
        That should have made this case simple. Plaintiffs allege only—just as
the doctors did in Alliance—that they want to serve clients who are impacted
by the law. That makes the organizations’ standing every bit as impermissible

        _____________________
        4
         Even El Paso County asserts this sort of injury. It alleges that it “plans to establish
the Office of New Americans, a program to improve the inclusion and integration of the
County’s immigrants” and that it already “manages a migrant services support center.”
See Texas, 719 F. Supp. 3d at 652. The County “alleges that SB 4 will interfere with these
programs.” Id. at 653.




                                              110
                                 No. 24-50149


as it was in Alliance. And it means the only way to find standing here is to
ignore Alliance, revivify Havens, and then extend Havens to confer standing
on virtually all organizations under all circumstances. That is the precise
opposite of what the Supreme Court unanimously told us to do a year ago,
when it admonished us “not to extend the Havens holding beyond its
context.” All. for Hippocratic Med., 

. Moreover, Havens was a
purely private dispute—it was not a public law dispute like this one. So
simply by telling us “not to extend the Havens holding beyond its context,”
the Supreme Court told us not to extend Havens to the realm of public-law
disputes. And that admonition makes good sense because, as illustrated by
this case and by Alliance, public-law disputes often have different and often-
more-attenuated harms than private-law disputes have. It is beyond me how
the majority can read Alliance’s instructions to allow today’s result.
       And if that was not bad enough, the majority also overrules circuit
precedent reaffirming the Alliance instructions. See Deep S. Ctr. For Env’t
Just. v. EPA, 

, 319 (5th Cir. 2025) (explaining that Havens has
been “limited . . . to its facts”); see also El Paso County v. Trump, 

, 343 (5th Cir. 2020) (“[A]n organization does not automatically suffer a
cognizable injury in fact by diverting resources in response to a defendant’s
conduct.”). In sum, the majority limits Alliance for Hippocratic Medicine to its
facts and expands Havens. That is backwards.
                                       2
       The majority nonetheless contends that S.B. 4 somehow “directly
interfere[s]” with Las Americas—even if the bill cannot ever be enforced
against the organization. Ante, at 20. How so? In the majority’s view, Las
Americas is identical to a plaintiff retailer that purchases defective goods
from a defendant manufacturer. And so too is Las Americas identical to
HOME.




                                      111
                                   No. 24-50149


       Respectfully, that is absurd. To stay within the first analogy, the State
of Texas (the “manufacturer”) is allegedly acting unlawfully against
(“selling defective goods to”) aliens (the “retailer”). Las Americas is, at
best, akin to the retailer’s management consultant. I suppose a McKinsey
consultant is marginally inconvenienced when his retailer client purchases
defective goods because that is one more thing that must be addressed in the
PowerPoint deck. But make no mistake: Only the retailer (here the alien) is
directly injured by the defective goods, and the retailer’s consultant (here Las
Americas) suffers only a derivative and wholly indirect injury by having to
update its advice on how to handle the problem.
       True, in public-law cases, multiple parties can be “directly” affected
by a law or regulation. For example, if the Government “bans hot dog sales
in stadiums, then hot dog manufacturers, not just stadiums, might be
considered objects of the regulation.” Diamond Alternative Energy, 

, at *8. Or if a State prohibits parents from sending their kids to
private schools, those schools (not just the parents) might be considered the
object of the State’s regulation. Id. at *9 (discussing Pierce v. Soc’y of Sisters,

, 535–36 (1925)). Or if a law bans employers from hiring certain
aliens, then alien-employees (not just their would-be employers) might be
directly affected by the law. Truax v. Raich, 

 (1915). That is
sensible enough: As a matter of economic reality, a law banning buying hot
dogs is just like a law banning selling them; a law banning parents from
sending kids to private schools is just like a law banning private schools; and
a law banning hiring certain employees for certain jobs is just like a law
banning those employees from holding those jobs.
       But in all events, direct impact is necessary. And in no event would
Las Americas be directly impacted by enforcement of S.B. 4. If the State’s
law said, “aliens cannot seek legal services,” that law could directly impact
both the aliens and the organizations (like Las Americas) that provide legal



                                       112
                                 No. 24-50149


services. But S.B. 4 says nothing about Las Americas or any of the services it
wants to provide. That makes Las Americas a complete stranger to the
statute and its enforcement. And it prohibits us from exercising jurisdiction
over Las Americas’ challenges to S.B. 4.
       So where does the majority find its “direct” impact on Las Americas?
Well, this is a real doozy: The majority seems to concede that Las Americas
has no particularized interest in this case. But that doesn’t matter to the
majority because it would confer standing on literally everyone in Texas. The
majority reasons: “The former Director of DPS publicly testified—
representing to immigrants, Las Americas, and the public—that he intended
to enforce the state entry and removal laws based on his authority as the
Director of DPS.” Ante, at 22. This representation was “false,” the majority
says, because Texas’s “laws are preempted.” 

 Thus, the majority
concludes, the DPS director “lied” to everyone in his legislative
testimony—and thus injured everyone (aliens, their lawyers and counselors
at Las Americas, and the public writ large) just like HOME was injured in
Havens. See 

       This is deeply wrong. In Havens, the defendant told falsehoods to the
plaintiff. The plaintiff HOME thus suffered a real, concrete, and
particularized injury, caused by the defendant, that differentiated it from
every other conceivable plaintiff in the universe. See Lujan, 

& n.1. In this case, by contrast, there is only one group of would-be plaintiffs
that would suffer such an injury from the enforcement of S.B. 4: the group of
aliens who could be arrested or removed. Everyone else—including Las
Americas and also including, say, my law clerks, legislative staffers in the
Texas Capitol, and the handful of people who might have watched the DPS
Director’s public testimony—has the same, undifferentiated, and de minimis
“injury” associated with hearing a man say “I’ll enforce this law” when in
fact he cannot because it is allegedly preempted. The majority thus



                                      113
                                    No. 24-50149


egregiously conflates aliens (who might be injured), their lawyers at Las
Americas (whose injuries are wholly self-inflicted and otherwise derivative of
their alien clients’ injuries), and members of the public (who are not injured
at all).
           Each step of the majority’s logic is deeply flawed. First, it presumes
that Texas state law is unconstitutional. But see Respect Maine PAC v. McKee,

 (2010) (per curiam) (explaining that “state legislative
act[s]” are “presumptively constitutional”). Then, it treats the DPS
Director’s statement that “I will enforce this law” as somehow equivalent to
Havens’ lying. But see All. for Hippocratic Med., 

 (“Havens was
an unusual case, and this Court has been careful not to extend the Havens
holding beyond its context.”). Then it treats that lie as directed at anyone in
the world. But see 

 Finally, it ignores the fact that plaintiffs’ choices to
devote resources to counseling and legal services are completely voluntary
and self-inflicted—because according to the majority, Clapper’s ban on
considering self-inflicted injuries in standing cases is limited to the facts of
that case. See ante, at 22–23.
           The majority’s upshot? After today, there is universal standing to
bring preemption challenges because every member of “the public” is
equally injured by a State’s enactment of a preempted law. Id. at 22. If anyone
thinks that Law X is unconstitutional or preempted or otherwise unlawful,
they can sue anyone who could theoretically enforce Law X—because merely
saying “the law is X” is tantamount to the lie in Havens. The majority also
separately recognizes standing for anyone who allegedly provides counseling
or legal services to any client subject to any illegality ever. But see All. for
Hippocratic Med., 

 (rejecting organizations’ theory that they
had standing under Havens because they “conduct[ed] their own studies” in
response to allegedly unlawful agency action concerning mifepristone “so
that” they could “better inform their members . . . about mifepristone’s



                                         114
                                   No. 24-50149


risks”). This is not just a flagrant violation of Alliance; it is inconsistent with
every standing decision since Lujan. It turns the federal courts into
“ombudsmen of the general welfare.” Valley Forge, 

. And it
grants every member of the general public “a special license to roam the
country in search of governmental wrongdoing and to reveal their discoveries
in federal court.” 

                                        B
       That is far from the only problem with today’s standing analysis. Over
and over and over, the majority takes a hatchet to standing doctrine. That is
a shame. As Professor Wechsler once said:
       The duty [of the courts] is not that of policing or advising
       legislatures or executives, nor even, as the uninstructed think,
       of standing as an ever-open forum for the ventilation of all
       grievances that draw upon the Constitution for support. It is
       the duty to decide the litigated case and to decide it in
       accordance with the law, with all that that implies as to a
       rigorous insistence on the satisfaction of procedural and
       jurisdictional requirements.
Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 

, 6 (1959) (emphasis added).
       Traceability is one such neutral principle. A “plaintiff has standing
only if” his injury is “fairly traceable to the defendant’s allegedly unlawful
conduct.” California v. Texas, 

, 668–69 (2021) (emphasis added)
(quotation omitted); see also 

 (holding that a statute’s “language,”
absent some specific official’s enforcement of that statute, is irrelevant).
Instead, the majority intones over and over that S.B. 4 is causing harm to Las
Americas. See, e.g., ante, at 14 (“The impact of S. B. 4 on Las Americas’s
delivery of services is direct.”); id. at 19 (“[T]he State of Texas has enacted
immigration laws that . . . perceptibly impair [Las Americas’s] ability to




                                        115
                                       No. 24-50149


provide counseling and referral services. . . .”); id. at 20 (“The state laws at
issue directly interfere with” Las Americas’ legal and counseling services.).
As if S.B. 4 is some anthropomorphized boogeyman, lurking around the Las
Americas office complex and thwarting its counseling calls. 5 The only thing
that matters, contra the majority’s imagination, is how Director Martin will
enforce S.B. 4—and it is undisputed that he will do literally nothing to enforce
it against the plaintiffs. Director Martin will not lie to the plaintiffs, as Havens
Realty did. He will not deport the plaintiffs, regulate the plaintiffs, investigate
the plaintiffs, talk to the plaintiffs or otherwise even know the plaintiffs exist.
When it comes to enforcement of S.B. 4, the plaintiffs are quite literally
strangers to Director Martin.
        This aspect of standing doctrine—that the plaintiff’s injury must be
traceable to the defendant’s wrongful conduct—is not some procedural
technicality. It is grounded in one of the most fundamental principles of
federal courts: that courts “have no right to pronounce an abstract opinion
upon the constitutionality of a . . . law.” Georgia v. Stanton, 

(1868). This principle goes back to Marbury v. Madison, 

(1803), where Chief Justice Marshall recognized that the power of judicial
review was a byproduct of the power to render a judgment in an individual
case. See William Baude et al., Hart & Wechsler’s The
Federal Courts and the Federal System 92 (8th ed. 2025). So
when the majority today asks how the law in the abstract might affect Las
        _____________________
        5
          This is untenable for another reason. As much as the majority may protest that
“S.B. 4 requires Las Americas” to divert its resources, ante, at 14; see also, e.g., 

(claiming that “Las Americas will have to divert its resources” and will “need to train staff
members”); id. at 15 (“Las Americas avers that it must prioritize its numerous goals and
services. . . .”), S.B. 4 requires Las Americas to do literally nothing. There are precisely
zero provisions in S.B. 4 requiring Las Americas to counsel or provide legal services to
immigrants. And there are precisely zero provisions in S.B. 4 that affect or direct or limit
or change the ways anyone may choose to provide counseling or legal services.




                                            116
                                 No. 24-50149


Americas, rather than how some enforcement action might, one should see
what is really going on. The majority has untethered the power of judicial
review from the historical obligation “solely to decide on the rights of
individuals.” Marbury, 

. And it has asserted a
freestanding power of judicial nullification, akin to the Council of Revision
rejected at the Founding. See 1 The Founders’ Constitution 322
(Philip B. Kurland & Ralph Lerner eds., 1987).
       Even the majority seems to recognize this. Its opinion includes
multiple pages explaining that Director Martin will never enforce S.B. 4
against Las Americas. Compare ante, at 20 (claiming that S.B. 4 “directly
interfere[s] with” Las Americas’s mission), with 

 at 24–25 (explaining that
S.B. 4 “regulate[s] immigrants” who “are ‘third parties’ or ‘someone else’
for the purposes of the standing analysis as explained in Alliance for
Hippocratic Medicine”). But somehow the irony escapes the majority. Las
Americas—as all now admit—is not directly affected by S.B. 4’s
enforcement.
       As if all of that were not bad enough, the majority then purports to
distinguish Alliance for Hippocratic Medicine on the grounds that the
organization in that case was an issue-advocacy organization, whereas the
organization in this one is a counseling organization.
       But that has what to do with the price of tea in China? So too was it
true that in Alliance for Hippocratic Medicine, the organization’s name started
with an “A,” rather than an “L.” But that is irrelevant. Our Constitution
does not afford special solicitude in the standing analysis for organizations
the majority likes, nor does it matter how the organization spells its name,
nor does it matter if the organization advocates for issues, law, policy, or
counseling. See also All. for Hippocratic Med., 602 U.S. at 393–94 (explaining




                                      117
                                  No. 24-50149


that all “organizations must satisfy the usual standards” for Article III
standing).
       True, as the majority points out, Alliance for Hippocratic Medicine does
contain the following sentence: “Critically, HOME not only was an issue-
advocacy organization, but also operated a housing counseling service.” Id.
at 395. But read just one more sentence in Alliance for Hippocratic Medicine.
That should make clear that the Supreme Court did not endorse the
majority’s counseling-organization-solicitude doctrine. Instead, the fact that
HOME “operated a housing counseling service” was “critical[]” only
because “Havens gave HOME’s employees false information about
apartment availability.” Ibid. That meant Havens “directly affected and
interfered with HOME’s” housing counseling services by directly lying to
the organization. Ibid. So the question here is not whether Las Americas
engages in counseling services. The question is whether Director Martin’s
enforcement of S.B. 4 against third parties is tantamount to telling a lie to Las
Americas and hence directly injuring the organization. The answer is a
resounding “no.”
                                       *
       One should not miss the consequence of today’s decision. Today, the
majority ensures that “all the organizations in America” can “challenge
almost every [governmental] policy that they dislike.” Ibid. All an
organization must do is provide “counseling” services or “legal
representation” concerning some subset of governmental polices. Ante, at
20. When any government entity changes its policy, the organization will
spend money in response to the policy it dislikes. Et voilà: The organization
has standing. Because organizations are to be treated no better than private
individuals, every individual in America will equally be able to take advantage
of the majority’s theory. And every federal court will be transfigured into a




                                       118
                                        No. 24-50149


sovereign ruler “with revisory power over” all governmental entities.
Muskrat v. United States, 

 (1911).
                                             III
        Equally unavailing are the theories of standing El Paso County offers.
On appeal, El Paso County argues it has standing because (A) S.B. 4’s
enforcement will “erode the public trust the County has worked to develop,”
Las Americas Br. at 19, and (B) the County will suffer increased costs
resulting from an increase in the annual number of arrests, 

 at 18–19. 6 I take
each in turn.

        _____________________
        6
         Below El Paso hinted at six other theories of standing, one of which I have already
addressed, see supra, at 110 n.4. Perhaps recognizing the weakness of these theories, El Paso
spares nary a word on them here. Regardless, each fails.
          First, the County previously alleged it would “have to fund the legal defense of any
County official sued . . . for implementing S.B. 4.” ROA.808. And? Any local official—who
the County would need to show would be sued for enforcing S.B. 4, and the County would
be required to indemnify under S.B. 4—is not a defendant here. And this court could enjoin
Freeman Martin and DPS a million times over, but that would not prevent a single local
official from enforcing S.B. 4. So the County would still suffer the same injury from having
to fund the legal defense of these county officials. Thus, there is no redressability. See
Haaland v. Brackeen, 

 (2023) (“[R]edressability requires that the court be
able to afford relief through the exercise of its power, not through the persuasive or even awe-
inspiring effect of the opinion explaining the exercise of its power.” (quoting Franklin v.
Massachusetts, 

 (1992) (Scalia, J., concurring in part and concurring in
judgment))).
        Second, the County previously alleged it might lose tax revenues. The allegation is
puzzling. El Paso has never even alleged that a single illegal immigrant pays even a single
cent in taxes to the County. The County alleged only that its “immigrant community,”
which includes “individuals who have naturalized, individuals who hold permanent
resident status,” and “individuals with temporary status,” pays about $590 million in taxes
and that there are illegal immigrants among the “immigrant community.” ROA.806. So El
Paso does not explain how it would lose even one cent in tax revenues if unknown and
unidentified immigrants at some time in the future enter Texas illegally, settle in El Paso
County, and then have S.B. 4 enforced against them by Director Martin.




                                              119
                                        No. 24-50149


        _____________________
          Regardless, this theory of tax-collector standing fails. First, the County has alleged
only a vague and generic loss in tax revenue, but it must offer “a direct injury in the form
of a loss of specific tax revenues” to ground Article III standing. Wyoming v. Oklahoma, 

 (1992) (emphasis added). Second, the presence of more people paying taxes
in El Paso County does not make the County more money. Counties are not for-profit
enterprises. The taxes counties like El Paso collect just reimburse them for public
expenditures. So any additional tax revenues El Paso might collect from illegal immigrants
will just help the County cover the additional costs from having more people in the County.
That is especially true when dealing with illegal immigrants, who undoubtedly pay minimal
amounts in taxes despite sapping significant public resources. See Texas v. United States, 

 (5th Cir. 2022) (drawing a connection between “an increase in the number
of aliens” and increased “education costs”); see also Jeffery C. Mays, Mayor Adams Says
Migrant Influx Will Cost New York City $12 Billion, N.Y. Times (Aug. 9, 2023),
https://perma.cc/369F-D83V.
          Third, the County previously alleged that “S.B. 4 further requires law enforcement
agents to collect certain biometric information,” thereby costing (for unexplained reasons)
“the County” (unspecified) quantities of money. ROA.808. But whatever injury might
arise is not “traceable to the defendant’s allegedly unlawful conduct.” California, 

. El Paso does not argue that the defendant, DPS Director Freeman Martin, will
enforce any biometric-data-collection provision against El Paso. Nor does El Paso argue
that that provision is somehow unlawful. So whatever hypothetical unspecified costs El
Paso might incur by having to collect data under this unchallenged provision of S.B. 4 are
not fairly traceable to any “allegedly unlawful conduct” by the actual “defendant.” 

Thus, there is no standing.
         Fourth, the County previously alleged that enforcement of S.B. 4 would “interfere
with [the County’s] organizational goals by forcing it to incarcerate individuals who are not
a risk to public safety.” Texas, 719 F. Supp. 3d at 653. No matter what the County meant
by this utterly vague allegation, the theory fails. To the extent El Paso meant that it was
upset that non-threatening individuals might be incarcerated, the theory fails because
plaintiffs “may not establish standing simply based on” their “strong opposition to the
government’s conduct.” All. for Hippocratic Med., 

. To the extent El Paso
meant that it had some abstract interest in keeping non-threatening people out of its own
jails and S.B. 4 would disturb that, see ROA.808 (noting that El Paso County hopes to
“lead[] justice reform” by not “incarcerat[ing] persons that may not be a high risk to public
safety”), the theory fails because plaintiffs “must show far more than simply a setback to
[its] abstract social interests,” All. for Hippocratic Med., 

 (quotation
omitted). To the extent El Paso meant that S.B. 4 would interfere with its own ability to
prosecute individuals who threaten the public safety, the theory fails because it is obviously
false. Nothing in S.B. 4 prohibits the County from also prosecuting and incarcerating such




                                              120
                                       No. 24-50149


                                             A
        The County’s first theory is that S.B. 4’s enforcement will “dilut[e]
the trust the El Paso County community has in its local government.”
ROA.809; see also Las Americas Br. at 19.
        This theory is so abstract that Jackson Pollock couldn’t make sense of
it. See Spokeo, Inc. v. Robins, 

 (2016). What could possibly
be more abstract than the dilution of the trust a community has in its local
government? How is that trust measured before and after S.B. 4’s
enactment? Is there a generally accepted method for measuring public trust?

        _____________________
people. And anyway, the relevant inquiry would be whether Director Freeman Martin’s
allegedly unlawful enforcement of S.B. 4 would somehow get in the way of the County’s
prosecution of these individuals. See California, 593 U.S. at 668–69. But obviously Director
Martin will do nothing to stop El Paso from prosecuting high-risk criminals. To the extent
this theory has any legs, then, it is only insofar as El Paso alleges that DPS’s enforcement
of S.B. 4 will somehow drain the County’s resources, which might in turn prevent it from
prosecuting certain people because of resource constraints. But that theory of standing,
focused on monetary costs to the County, I address below. See infra, Part III.B.
         Fifth and finally, the County previously alleged that S.B. 4 would “require [it] to
provide training to peace officers.” ROA.808. Yet again, that misconceives the standing
inquiry. The County must trace its injury “to the defendant’s allegedly unlawful conduct.”
California, 

 (emphasis added). So it is of no moment that S.B. 4 might
require the County to train peace officers. Director Martin’s enforcement of S.B. 4 against
third-party aliens will obviously not force the County to train anyone. Nor, for that matter,
has the County argued that even if Director Martin were somehow to enforce these training
requirements, that that would be “unlawful.” 

         Regardless, does S.B. 4 even require such trainings? The record suggests if El Paso
County decides to conduct any trainings, that will be its own voluntary choice. And if it
does, Texas has made available appropriations to reimburse the County for just these sorts
of expenses. See infra, at 123–24. Regardless, it is unclear why El Paso County would
conduct any training exercises when Texas has affirmatively required DPS and other state
officials to conduct such trainings. See Tex. Gov’t Code § 411.02093; see also Tex.
Occ. Code § 1701.359 (providing for additional help in “administering . . . the border
operations training program” and offering incentives to officers for “successfully
complet[ing] the program”).




                                            121
                                     No. 24-50149


Why would citizens of El Paso County lose trust in local government because
of State lawmakers’ decisions in Austin? The questions go on and on, but the
answers are altogether absent. So it should be unsurprising that El Paso has
never even tried to “identif[y] a close historical or common-law analogue for
th[is] asserted injury.” TransUnion LLC v. Ramirez, 

(2021). To the contrary, it is simply abstraction stacked on abstraction.
          Finally, El Paso’s theory is limitless. It boils down to this: The political
subdivision thinks it should be able to sue the State that created it because its
local officials dislike S.B. 4. That, after all, is why El Paso’s politicians think
the state law will diminish public trust, while (say) Lubbock County’s
politicians might think the state law will improve it. Such standing-by-strong-
feelings is antithetical to the principle that federal courts decide matters “of
a Judiciary Nature.” See 2 Records of the Federal Convention
of 1787, at 430 (Max Farrand ed. 1966) (statement of James Madison).
                                           B
          Now turn to El Paso County’s theory that it will lose money if S.B. 4
is enforced by Director Martin. See California, 593 U.S. at 668–69 (“A
plaintiff has standing only if . . . [his] injury [is] fairly traceable to the
defendant’s allegedly unlawful conduct.”). Of course, Director Martin will
not enforce S.B. 4 against El Paso County. Director Martin will enforce
S.B. 4 only against third-party aliens. And when a plaintiff complains about
“the government’s regulation (or lack of regulation) of someone else”
standing is “substantially more difficult” to establish. All. for Hippocratic
Med., 

 (quotation omitted); see also 

 at 382–83 (collecting
cases).
          El Paso County has failed to meet its burden to establish standing here.
To the contrary, (1) all of El Paso County’s theories depend on speculative
assessments of the costs that might arise from additional arrests and




                                          122
                                       No. 24-50149


detentions if S.B. 4 were enforced by DPS. 7 Although this alone should be
enough to dispose of El Paso’s case, I (2) explain the deficiencies in each of
El Paso County’s cost theories.
                                             1
        El Paso asserts that if S.B. 4 is enforced, 8,000 new people will be
arrested in the El Paso area and 8,000 people will therefore end up in the
County’s jails. These unsupported estimates do nothing to establish
standing.
                                             a
        Start with perhaps the most damning fact for El Paso: Texas will
extensively reimburse the County for any costs it might incur in S.B. 4’s
enforcement. Texas recently made available, for example, $1.5 billion to
“provide grants to local governments and local law enforcement agencies to
alleviate costs associated with an increased demand on local prosecutorial,
judicial, and correctional resources.” See Act of Dec. 18, 2023, 88th Leg., 4th
C.S., ch. 1, § 1 (S.B. 3) (eff. Mar. 5, 2024). That money was made available
because of the precise concerns El Paso raises here: that “municipal
government[s] [might] incur increased costs while enforcing SB 4.” See Uriel
J. Garcia, Texas Legislature Send $1.54 Billion Bill for Border Barriers to Gov.
Abbott, Tex. Tribune (Dec. 1, 2023), https://perma.cc/Y7ED-K4WA;
see also Tex. Senate, Senate Session (Part I), at 1:16–36 (Dec. 1, 2023),
https://www.senate.texas.gov/videoplayer.php?vid=19231. And that is far
from the only money that has been made available to local governments. See
id. at 1:55–2:08. For his part, Governor Abbott has consistently

        _____________________
        7
          A brief note on doctrinal categories. My discussion will invoke language common
to both the imminence and traceability inquiries. That is because the two inquiries dovetail
in this context. See All. for Hippocratic Med., 

 n.2.




                                            123
                                  No. 24-50149


“encourage[d] local government to apply for these funds.” Press Release,
Governor Abbott Announces Operation Lone Star Grant Program To Enhance
Border Security Operations, Off. of the Tex. Governor (Sept. 20,
2021), https://perma.cc/EE9W-KZK5. So the idea that El Paso will lose one
penny—even if its estimates are accurate—is speculative.
                                       b
       But putting reimbursement to one side, El Paso County’s estimate of
how many new people will end up detained in its facilities still does nothing
to ground standing.
       El Paso does not clearly allege—let alone establish—that 8,000 new
people will be detained in county facilities. El Paso says only that if S.B. 4 is
enforced, “there may be over 8,000 additional arrests . . . in the El Paso area.”
ROA.960 (emphasis added). That statement is absolutely true. There “may”
be 8,000. Or 50,000. Or 5 million additional arrests. Or there “may” be zero
additional arrests. Anything “may” happen. Such vague allegations cannot
ground standing.
       Anyway, the estimate is absurdly speculative. El Paso appears to base
it on former DPS Director McCraw’s testimony before the Texas Senate
Committee on Border Security. On the County’s telling, during a committee
hearing, Director McCraw argued that enforcement of S.B. 4 would lead to
an additional 75,000–80,000 arrests by DPS in Texas annually. From there,
the County “estimate[d]” that 8,000 of those arrests would be in the El Paso
area. ROA.960. But the County mischaracterizes Director McCraw’s
testimony. Director McCraw never said that the enforcement of S.B. 4 would
lead to 75,000–80,000 arrests. He said only that it might lead to a “maximum
amount” of 75,000–78,000 arrests throughout the State. See Tex. Senate,
Senate Committee on Border Security, at 49:25–50:25 (Oct. 10, 2023),




                                      124
                                        No. 24-50149


https://tlcsenate.granicus.com/MediaPlayer.php?clip_id=18423 (emphasis
added) (“McCraw Testimony”).
        Regardless, one cannot extrapolate from Director McCraw’s
testimony that there might be up to 78,000 arrests at the hands of DPS in
Texas that 8,000 of those arrests will occur in El Paso. El Paso itself offers no
reason to draw this inference. Instead, it relies on a declaration submitted by
Melissa Michelle Carrillo, a county administrator who appears to have
plucked the estimate out of thin air. See ROA.960.
        In any event, the estimate rests on a misconception about enforcement
of S.B. 4. The estimate assumes that DPS will broadly enforce S.B. 4 in El
Paso. (Recall that DPS is the only defendant that El Paso County wants to
enjoin from enforcing S.B. 4.) But at least to the extent no state facilities near
El Paso County have been made available for detaining immigrants, there is
no reason to think DPS will enforce S.B. 4 in the El Paso area. 8 See ROA.315
(Escalon Decl.) (explaining that DPS will “prioritize enforcement of SB 4 in
counties that are close to facilities operated by TDCJ and the State”); see
also Ex parte Aparicio, 

, 200 n.44 (Tex. Crim. App. 2024)
(explaining that “DPS has the discretion” in deciding whether or not “to
arrest”). So even if DPS makes 78,000 arrests in Texas, it will not
necessarily make many, or any, in El Paso.
        Frankly, it should come as no surprise that other officials might instead
bear the lion’s share of enforcement responsibilities in the El Paso region. A
host of other officials, both local and state, may enforce S.B. 4. For instance,
the Texas Tactical Border Force, part of the Texas Military Department, was
        _____________________
        8
           And to the extent state facilities near El Paso County, such as the Rogelio Sanchez
State Jail, have been made available to DPS, the County runs into another problem: The
State will house S.B. 4 detainees in those state facilities rather than the County’s facilities.
See infra, at 127.




                                              125
                                   No. 24-50149


commissioned just a few months before S.B. 4’s passage to help with the
enforcement of Texas law at the border. See Press Release, Governor Abbott
Deploys New Texas Tactical Border Force, Off. of the Tex. Governor
(May 8, 2023), https://perma.cc/T29G-27V4. And surprise, surprise. As it
turns out, the first place Governor Abbott deployed multiple units of
“hundreds of trained service members” of this new force was El Paso. 

And that is not to mention the many local officials who will help enforce
S.B. 4. Those officials will be trained to enforce S.B. 4 by DPS itself. See
Tex. Gov’t Code § 411.02093; see also Tex. Occ. Code § 1701.359
(providing for additional help in “administering . . . the border operations
training program” and offering incentives to officers for “successfully
complet[ing] the [training] program”). So DPS has little need to make
arrests in El Paso.
       That also creates a redressability problem for El Paso County. As the
Supreme Court has explained, “[r]edressability requires that the court be
able to afford relief through the exercise of its power, not through the persuasive
or even awe-inspiring effect of the opinion explaining the exercise of its
power.” Haaland v. Brackeen, 

 (2023) (quoting Franklin v.
Massachusetts, 

 (1992) (Scalia, J., concurring in part and
concurring in judgment)); see also Diamond Alt. Energy, 

, at
*11 (“Article III’s redressability requirement serves to align injuries and
remedies.”). But does the exercise of our power—the issuance of injunctive
relief barring Director Martin and only Director Martin from enforcing
S.B. 4—do much of anything to redress El Paso’s alleged injuries? Why
should it? There are plenty of other law enforcement officials in and around
El Paso County trained to enforce S.B. 4 who may well enforce it all the more
vigorously in DPS’s absence. The only reason those law enforcement
officials would not do so is because of the supposedly “awe-inspiring . . .




                                       126
                                   No. 24-50149


opinion” this august court has released today. Brackeen, 

. But
that does not satisfy redressability.
       Regardless, to the extent DPS were to make some additional arrests
in and around El Paso over and above the arrests other officials would make
in DPS’s absence, there is still little reason to think DPS will house the
arrestees in El Paso County facilities. Although El Paso County assumes that
1 arrest = 1 migrant detained in El Paso facilities, it offers no explanation for
that presumption. Yet again it relies on the bald assertions in the Carrillo
declaration. But Carrillo’s estimate is puzzling. As the district court itself
acknowledged, “DPS expects to house and process noncitizens detained
under SB 4 primarily in State-owned facilities.” Texas, 719 F. Supp. 3d at 659
(quotation omitted); see ROA.315. And there is a state-owned facility near El
Paso County that may well be made available to DPS: the Rogelio Sanchez
State Jail. Moreover, the number of estimated arrests obviously “include[s]”
some unspecified quantum of “family units.” McCraw Testimony at 50:50–
51:00. But such family units are handed over to the Federal Government as a
matter of DPS policy. Id. at 22:34–23:01, 57:50–58:05, 58:48–58:54. And this
is far from the only time that state officials will work with and hand over
arrested aliens to federal officials.
       Moreover, the connection between arrests and detention is tenuous at
best. S.B. 4 is not a bill geared towards detention. Many aliens would never go
to prison under S.B. 4. After all, an alien charged with a criminal offense under
S.B. 4 may “agree[] to [an] order” requiring “the person to return to the
foreign nation from which the person entered or attempted to enter.” Tex.
Code Crim. Proc. art. 5B.002(c). If we have learned anything from plea
bargaining, many who are arrested will choose to avoid trial (and hence
detention) if they can. Cf. United States v. West, 

 (5th Cir.
2025) (Oldham, J., dissenting from denial of rehearing en banc). Even if some
refuse to do so and are ultimately convicted, the vast majority would be



                                        127
                                      No. 24-50149


convicted only of misdemeanors, see Tex. Penal Code §§ 51.02(b),
51.03(b), which are punishable by either a small fine or short period of
confinement, see id. §§ 12.21, 12.22. 9 The main punishment those individuals
would receive is the enforcement of a return order. See Tex. Code Crim.
Proc. art. 5B.002(d). Since S.B. 4 focuses so little on imprisonment, there
is no reason to think arrestees will be systematically thrown in prison.
        El Paso County does not even seem to allege that S.B. 4’s enforcement
by DPS will force a single individual into El Paso facilities post-conviction.
Instead, El Paso seems to rely on the fact that some modicum of detainees
will be taken by DPS to El Paso County facilities for pre-trial detention. But
again, the detainees seized by DPS will be largely housed in state facilities
pre-trial. See ROA.315. And if any single individual detained by DPS were to
be detained in one of the County’s facilities, that individual may well be
detained for under 24 hours. After all, “El Paso County jail has a 24-hour
magistration system.” ROA.958. So “within 24 hours of” when “a person is
booked into the County Jail, they appear before a magistrate for an initial
appearance and assessment of bond.” Ibid. Presumably, those magistrates
will allow many arrestees to be released on bond—especially given that most
S.B. 4 offenses will be misdemeanors subject to minor penalties. And other
arrestees will be released because the magistrate will determine probable
cause did not support the arrest in the first place.

        _____________________
        9
          Even repeat violations of Tex. Penal Code § 51.02 are classified only as a
“state jail felony,” which merit 180 days to two years in prison. Id. § 12.35. And only a
subset of those who violate § 51.03 are subject to a felony offense. If the offender “was
removed subsequent to a conviction for the commission of a felony,” then he commits a
second-degree felony. Id. § 51.03(b)(2). If the offender (A) was previously removed after
“a conviction for commission of two or more misdemeanors involving drugs” or “crimes
against a person”; (B) was “excluded” because he is a terrorist; or (C)–(D) was previously
removed under certain provisions of federal law, he commits a third-degree felony. Id.
§ 51.03(b)(1).




                                           128
                                  No. 24-50149


         One last point. Assume every argument I have made so far is dead
wrong. Still, why would El Paso County’s jails be any fuller than they are
today? If anything, S.B. 4 seems likely to free up space in El Paso’s facilities.
The purpose of S.B. 4 is “to deter illegal entry into the State.” See McCraw
Testimony at 4:09–11 (emphasis added). And the bill should succeed in
reducing illegal immigration. See ROA.287 (explaining that, as of February
2024, Operation Lone Star had resulted in roughly 40,000 arrests but had
deterred almost 100,000 illegal entries). As the former President explained,
“it’s highly unlikely that people” will cross illegally “knowing that they’ll be
. . . kicked out quickly.” Transcript of President Joseph Biden’s State of the
Union       Address,    Associated           Press       (Mar.      8,    2024),
https://perma.cc/7K36-355E. Thus, the Federal Government has predicted
that if S.B. 4 were enforced, “migrants would instead seek to enter the
United States through” other States. ROA.145. With less illegal immigration
in Texas, the County should expect to see more room in its jails. The County
itself seems to recognize that. It acknowledges that in recent years it has had
an influx of individuals convicted of crimes such as “human trafficking.”
ROA.962. So lo and behold, the very crimes illegal immigration foments are
the ones leading to crowding of El Paso County jails. See supra, at 101–02
(noting that human trafficking is one of the primary evils caused by the border
crisis). So if anything, S.B. 4’s enforcement should reduce the incidence of
crimes such as human trafficking, thereby freeing up space in El Paso County
jails.
                                        2
         Now to El Paso County’s specific theories of costs. Those may be
sorted into four buckets. Specifically, the County argues that (a) it will lose
federal revenues; (b) it will have to build a new jail and hire more staff; (c) it
will have to house more people in its county jails; and (d) it will face increased
costs in operating its judicial and prosecutorial system. Of course, none will



                                       129
                                     No. 24-50149


be relevant if Texas reimburses the County for its expenses—something that
is all the more likely given how small the County’s expenses are likely to be.
Moreover, each theory depends on the County’s vague and speculative
allegation about the number of arrests that will occur if DPS enforces S.B. 4.
And all but the final bucket of costs also depend on the County’s even more
speculative claim about the number of detentions that will occur in El Paso’s
facilities. Those problems have already been detailed. Here, I focus only on
the additional problems that beset the County’s cost theories.
                                          a
           First, El Paso County theorizes that S.B. 4 would reduce the revenue
it receives from the Federal Government. When the County houses a federal
prisoner in one of its jails, the Federal Government pays the County. But
because the County “estimates there may be over 8,000 additional arrests
under S.B. 4 in the El Paso area,” it asserts that its jails would have less space
to house federal prisoners. ROA.960. And, so the logic goes, fewer federal
prisoners means fewer federal dollars for the County.
           Problems with this theory abound. The theory relies on the
assumption that Director Martin’s enforcement of S.B. 4 will so overwhelm
El Paso County’s jails that it will have to turn away federal prisoners. The
County thinks this would happen because it believes that all, or most, of the
aliens that it estimates will be arrested under S.B. 4 in El Paso would be
housed in the County’s jails. But that is utterly unfounded. See supra, Part
III.B.1.
           Still, El Paso’s theory fails for an even simpler reason: Federal funds
merely reimburse the County. Despite offering minimal explanation about how
the federal funding scheme operates, the County’s declarant gives the game
away with one comment: The “amount that is billed to the federal
government for detainees” is the “cost . . . for each inmate housed.”




                                         130
                                   No. 24-50149


ROA.961. So adding a federal prisoner to or subtracting one from an El Paso
jail does absolutely nothing to the County’s pocketbook. El Paso does not
“lose” a cent either way.
                                         b
       El Paso next surmises that it will suffer an economic injury because it
may need to “hire more Detention Officers/Deputies” and because of the
“[p]ossible need for a new jail to be built to house additional inmates if [its]
current bed capacity is exhausted.” ROA.960–61. Both theories fall flat.
       For either theory to work, DPS’s enforcement of S.B. 4 must balloon
the County’s jail population to the point of complete capacity. No evidence
remotely supports that proposition, especially given that many migrants will
serve minimal, if any, time in county jails. See supra, Part III.B.1. So even if a
few aliens were sent to an El Paso jail, most of their stays would never overlap.
Since El Paso’s jails will be far from overrun, even if El Paso chose to hire
new detention officers or construct a new prison, that would be an entirely
voluntary choice traceable to its own misguided assumptions. See Clapper,
568 U.S. at 416–18.
       But let’s ignore these myriad problems and assume that El Paso’s jails
would swell to a point nearing capacity. If it ever were to reach this point,
DPS officials would obviously not seek to house aliens in the County’s jails.
Rather, they would send aliens to facilities not overworked or overextended.
DPS would thereby obviate any need to hire more prison guards or build a
new facility. For El Paso’s “overflow” theory to work, it must show that not
only its facilities would be full—but that all facilities would be full. It does not
even attempt to do that.
       This is more than enough to sink these two “overflow” theories. Still,
let me highlight three more problems. First, El Paso’s theories must fail
because the County does not share information that would be critical to




                                        131
                                  No. 24-50149


support its Rube Goldberg chain of inferences. For example, El Paso does not
tell us how many inmates it currently houses. Nor does it tell us how many
detention officers are on its staff. Second, El Paso intimates that it might need
to hire more detention officers because of its preferred “target” detention
officer to inmate ratio. ROA.961. I recognize that adequate staffing is
important to maintaining prison safety and security. But if El Paso were to
hire more detention officers to follow this seemingly self-set target ratio, that
is the County’s own voluntary choice. S.B. 4’s enforcement cannot be
blamed. Third and finally, if a new jail or more detention officers were
needed, this would be traceable to enforcement of all the various criminal
laws in Texas that necessitated imprisonment in El Paso’s jails. S.B. 4
prisoners would likely make up only a fraction of the jail population. It would
be odd, then, to trace a possible staff or building expansion to DPS’s
enforcement of S.B. 4.
                                       c
       Next, the County claims it will suffer economic harm because it costs
money to house S.B. 4 detainees in County facilities. Specifically, the County
“estimates” a cost of $105–112 per day per prisoner. ROA.961. “This cost
includes operation, personnel and unfunded requirements for medical and
mental health care required by the state.” Ibid.
       This theory fails. As noted above, it is unclear that S.B. 4’s
enforcement by DPS specifically will do anything to change the number of
people detained in El Paso County’s jails. See supra, Part III.B.1.
       In addition, this per-prisoner cost estimate includes several costs that
are not traceable to S.B. 4’s enforcement. Operation costs and personnel
costs are fixed costs. The County will pay to keep the lights on and to keep
the facility staffed regardless of whether the prison will house additional
inmates under S.B. 4.




                                      132
                                No. 24-50149


       Moreover, it is entirely speculative whether medical and mental
health care costs are traceable to S.B. 4’s enforcement by Director Martin.
No one explains what “medical care” even includes, what the cost
breakdown is for each aspect of that broad category, nor what percentage of
the total cost-per-day estimate falls under the umbrella of “medical care.”
This is problematic. The bulk of the County’s medical costs may just be
paying the salaries of doctors and nurses. So even if an S.B. 4 inmate sees a
doctor and thus uses “medical care,” that does not mean that inmate
increased the County’s medical costs. The doctor is getting paid no matter
what. And most S.B. 4 inmates will probably never receive medical care or
attention of any kind because their jail stays will be exceedingly short. See
supra, at 128.
                                      d
       Finally, El Paso claims that Director Martin’s enforcement of S.B. 4
will cause an “increase in judicial costs.” ROA.961. “Depending on the
number of persons detained under enforcement of S.B. 4,” El Paso’s
declarant claims, “several processes in the County’s criminal justice system
may be negatively impacted.” ROA.958 (emphasis added). El Paso appears
to make two separate claims about these possible negative impacts.
                                      i
       The first turns on hiring. El Paso’s declarant states that “any
significant increase to current caseload would require the County to devote
more resources to hire more indigent defense lawyers, prosecutors, and CJC
personnel.” ROA.959 (emphasis added). This “would likely” occur because
the declarant assumes that the County’s courts will see “[a]n increase of
8,000 cases” under S.B. 4. ROA.959.
       There is no evidence whatsoever of the requisite “significant”
increase to the County courts’ caseload necessary for the County to sustain




                                     133
                                  No. 24-50149


this injury. The County far too hastily infers that there will be 8,000 more
cases in its courts because of the 8,000 arrests it guesses might occur in the
area. But that estimate again runs into a host of problems. See supra, Part
III.B.1. Moreover, the El Paso County courts only have criminal jurisdiction
over misdemeanors. See Estrada v. Texas, 

 (Tex. App.—
El Paso 2004) (citing, inter alia, Tex. Const. art. V, § 17; Tex. Gov’t
Code § 25. 0732). But repeat offenses under Tex. Penal Code § 51.02
and certain offenses under § 51.03 are only subject to felony offenses. None
of those arrested aliens will go before a county court. In addition, some
number of charges will simply be dropped, as county prosecutors “bear
discretion in deciding which cases to prosecute.” Ex parte Aparicio, 707
S.W.3d at 199. And some number of arrestees will likely be turned over to
federal officials before being processed in any state or local court. Regardless,
many of the cases that are initiated in county courts will be short-lived, as
many aliens will agree to the entry of a return order and will then depart from
the country. So in sum, it is entirely speculative to suppose that El Paso’s
courts will have a “significant” increase in work.
       El Paso also receives state money for prosecuting illegal aliens. The
County admits that it receives millions of dollars in grant money to help
operate its judicial system. ROA.958–59. But it fails to mention the grant
money the State has made available for helping to secure the border—grant
money that is explicitly made available to reimburse counties for “costs
associated with an increased demand on local prosecutorial” and “judicial
. . . resources,” among other things. Supra, at 123.
       Anyway, any decision to hire more defense lawyers, prosecutors, and
court personnel is a voluntary choice. Nothing in S.B. 4 requires localities to
increase staffing. And a core function of prosecutorial discretion is to choose
not to pursue cases based on resource constraints. See Heckler v. Chaney, 

 (1985). As such, any hiring decisions would be traceable to El



                                      134
                                 No. 24-50149


Paso’s own independent choices, not to Director Martin’s enforcement of
S.B. 4 against third-party aliens. See Clapper, 568 U.S. at 416–18.
                                       ii
       El Paso’s second claim turns on the cost per case. Specifically, El Paso
asserts that “an additional 8,000 prosecutions to the courts could cost
approximately $5 million per year based on $700 per case.” ROA.959
(emphasis added). There is no need to (again) explain why there will not be
8,000 prosecutions resulting from Director Martin’s enforcement of S.B. 4,
nor why, even if there were, the County very well might be reimbursed down
to the last penny. Instead, I focus here only on the completely unfounded
assumption that every single prosecution will cost the County $700.
       The County provides no information concerning where it gets its $700
cost-per-case statistic. It never details what inputs are included and how
much each input costs. That lack of explanation alone means that El Paso has
not met its burden to establish an economic injury.
       But even more importantly, many costs that El Paso claims to pay have
nothing to do with S.B. 4’s enforcement. For example, the County states that
it funds judicial salaries. See ROA.958. But a salaried judge will not receive a
dime for trying an extra case. The same is likely true for at least the
overwhelming majority of its prosecutors, defense attorneys, and court staff.
Or consider the County’s claim that it “provides general funds to the
Juvenile Probation Department.” ROA.959. Once again, that alleged cost,
which might well be part of that $700 figure, has nothing to do with S.B. 4’s
enforcement. Indeed, the evidence establishes that the State will likely not
enforce S.B. 4 against minors. See ROA.315.
       In any event, imagine the consequences of El Paso’s theory. If a
government entity suffers an economic injury any time a new law threatens
to incidentally affect judicial resources, counties would suffer injury any time




                                      135
                                   No. 24-50149


a State passes any new law at all. And why stop at counties? States, too, would
suffer economic injury any time Congress passes a new statute (at least
outside the criminal realm). After all, state courts must apply federal law, see
Testa v. Katt, 

 (1947), and there is a strong presumption that
federal claims can be heard in state courts, see Haywood v. Drown, 

 (2009). So whenever the Federal Government passes nearly any new
law, at least some state judicial resources will be affected—either because new
additional federal suits are filed in state court or simply because it takes the
state court more time to figure out the new contours of federal law. Such an
absurdly unlimited theory of Article III injury has no basis in law or logic. Cf.
All. for Hippocratic Med., 602 U.S. at 391–92.
       El Paso’s judicial costs theory is also in tension with another principle
of standing doctrine: Parties cannot rely on incidental litigation costs to
establish standing. See Steel Co. v. Citizens for a Better Env’t, 

, 107–
08 (1998). If Article III does not allow a party’s litigation costs to ground
standing, it would be odd to allow a government’s incidental litigation costs
to ground standing.
                                        *
       El Paso County throws a mind-numbing array of theories at the wall
praying that one will stick. That poses a challenge in trying to analyze
whether the County has standing. (Perhaps that explains why the majority
ignores the issue and reaches to find Havens standing for Las Americas
instead.) But upon inspection, the basis for El Paso’s theories becomes clear:
It is pure speculation. That is insufficient to establish standing, and it means




                                       136
                                       No. 24-50149


we have no jurisdiction over the plaintiffs’ purely political dispute with a state
law they do not like. 10
                                             IV
        Now I turn to whether the plaintiffs have a cause of action. Like the
standing requirement, the cause-of-action requirement exists to “help[]
courts stay in their lane.” Green Valley Special Util. Dist. v. City of Schertz,

 (5th Cir. 2020) (en banc) (Oldham, J., concurring). So the
majority’s disregard for the cause-of-action requirement evinces its disregard
for the limits on its powers.
        I begin by (A) explaining that plaintiffs lack a cause of action. Then, I
(B) explain the cases the majority relies upon are not to the contrary. Finally,
I (C) respond to the plaintiffs’ lone counterargument.
                                             A
        Even if the plaintiffs have standing, they still must establish that this
court has equitable jurisdiction. See Samuel L. Bray & Paul B. Miller, Getting
Into Equity, 

, 1764, 1772–73 (2022)
(explaining that equity does not have “causes of action” but instead a “suitor
in equity” must have “a grievance” sufficient to invoke “equitable
jurisdiction” (quotation omitted)). The plaintiffs say they meet that

        _____________________
        10
            Texas argues there is an additional jurisdictional problem. Adjudicating this
dispute would require us to pass on a non-justiciable political question: whether Texas was
invaded under the State War Clause. I agree with Texas that we cannot second-guess the
Governor’s declaration of an invasion. See, e.g., Moyer v. Peabody, 

 (1909)
(holding that a “Governor’s declaration that a state of insurrection existed [was] conclusive
of that fact”); see also Sterling v. Constantin, 

 (same). The implications of
that declaration are not immediately obvious, however. In the interest of time, and given
the exigencies posed by the State’s upcoming trial, I must rest on the simple jurisdictional
problem that plaintiffs have no standing. See Acheson Hotels, LLC v. Laufer, 

(2023) (explaining that courts “can address jurisdictional issues in any order”).




                                             137
                                      No. 24-50149


requirement because voluntarily diverting resources or spending a dollar
allows them to invoke equitable jurisdiction under Ex parte Young, 

 (1908). That case stands for the principle that “federal courts have
jurisdiction over suits to enjoin state officials from interfering with federal
rights.” Shaw v. Delta Air Lines, Inc., 

, 96 n.14 (1983).
        But the Ex parte Young doctrine has many important limits. Of
particular relevance here, the doctrine is “without application” unless the
plaintiff invoking the court’s equitable jurisdiction alleges the invasion of “a
legal right,—one of property, one arising out of contract, one protected
against tortious invasion, or one founded on a statute which confers a
privilege.” Tenn. Elec. Power Co. v. Tenn. Valley Auth., 

(1939) (emphasis added); see also Stark v. Wickard, 

 (1944)
(explaining that to bring a suit for non-statutory injunctive relief, 11 plaintiffs
must show “an interference with some legal right of theirs”); Caleb Nelson,
“Standing” and Remedial Rights in Administrative Law, 

, 715–16 (2019) (“To qualify for relief under general principles of equity
jurisprudence, the plaintiff normally needed to establish not only that the
defendants were behaving unlawfully, but also that their behavior amounted
to an invasion of recognized legal rights (or legally protected interests) that
the law conferred upon the plaintiff in particular.” (quotation and footnote
omitted)). Put another way, there is a rough symmetry between the kind of
injury that can support a prospective equitable action for non-statutory
injunctive relief under Ex parte Young and the kind of injury that can support
a retrospective legal action for damages. See 

 at 715–16; see also

        _____________________
        11
          When I use the term “non-statutory” in reference to injunctive relief, I mean
injunctive relief issued not under any specific statute but under what the Supreme Court
has deemed federal courts’ more general “equitable authority . . . under the Judiciary Act
of 1789.” Trump v. CASA, Inc., 606 U.S. ---, --- (2025), 

, at *5.




                                           138
                                  No. 24-50149


Comm. on Admin. Proc., Off. of the Att’y Gen., Final
Report of the Attorney General’s Committee on
Administrative Procedure 81 (1941), https://perma.cc/7RYE-
XDPB (explaining that “the private action for damages . . . and the equity
injunction . . . rest[] on the same theory”).
       Consider, for example, Tennessee Electric. That case concerned the
Tennessee Valley Authority, a federal agency created to generate and sell
electric power from dams on the Tennessee River. 

. A group
of utility providers sued the Authority and three of its officers because they
thought the Federal Government had no constitutional authority to charter
what amounted to a power company. 

. The providers did not have a
statutory cause of action because the case arose before Congress enacted the
Administrative Procedure Act (“APA”) in 1946. So they filed a non-
statutory bill in equity pursuant to “the doctrine that one threatened with
direct and special injury by the act of an agent of the government . . . may
challenge the validity of the statute in a suit against the agent.” 

.
That is, they sued under Ex parte Young. See 306 U.S. at 137–38 n.6 (citing Ex
parte Young, 

). The question presented was whether the
providers could sue. No one disputed the providers alleged injury in fact;
they certainly stood to lose money if the Authority was allowed to compete
in the electricity business. 

. The providers argued this injury in fact
alone gave them equitable standing to challenge the constitutionality of
Congress’s statutory grant of power to the Authority. 

. But the
Court rejected that argument.
       As the Court explained, persons aggrieved by unlawful agency action
may sue to obtain a non-statutory injunction only if they allege the challenged
action invades a right recognized by law—i.e., a right “of property, one
arising out of contract, one protected against tortious invasion, or one
founded on a statute which confers a privilege.” 

. So the providers’



                                      139
                                  No. 24-50149


injury was not enough. They had no legally protected right to be free from
competition, so they had no “right to sue” for non-statutory injunctive relief
from the Authority’s activities. 

.
       The same rule controlled one year later in Perkins v. Lukens Steel Co.,

 (1940). Perkins concerned the Public Contracts Act. The Act
provided that the Federal Government would not buy goods from a company
unless the company paid its employees a minimum wage determined by the
Secretary of Labor. 

 at 116–17. The statute directed that the prevailing
minimum wage was a function of the industry and the “locality” in which the
relevant goods were produced or sold. 

 Some thought the word
“locality” meant political subdivision. 

. But the Secretary reasoned
that interpretation would “nullify the law” because if “locality” referred to
town-sized units, then the law would merely require manufacturers to pay
the “minimum wage prevailing in each plant.” 

 So the Secretary
determined that locality meant something like a region of the country. He
accordingly divided the nationwide steel industry into six localities and
assigned a prevailing minimum wage to each. 

       A group of steel producers sued for non-statutory injunctive relief
from the Secretary’s implementation of the law. See 

. They certainly
alleged injury in fact. The Secretary’s decision to lump producers from
diverse States—e.g., New York and West Virginia—together for purposes of
calculating the prevailing minimum wage meant some producers had to raise
their wages by more than 15 percent or forgo sales to the Federal Government
altogether. See 

 at 123–24.
       But that did not matter: It was “by now clear,” the Court proclaimed,
“that neither damage nor loss of income in consequence of the action of
Government, which is not an invasion of recognized legal rights, is in itself a
source of legal rights in the absence of constitutional legislation recognizing




                                      140
                                       No. 24-50149


it as such.” 

. In other words, lost income did not amount to violation
of a legal right unless some source of law made it so. And the Court held it
may grant non-statutory injunctive relief only to prevent a violation of a legal
right. See 

 (“[T]o have standing in court, [plaintiffs] must show an injury
or threat to a particular right of their own.”). Because the steel producers did
not have a legally protected right to bid “for Government contracts free from
any obligation to abide by the minimum wage determination,” 

, the
Court dismissed their suit.
        Thus, Supreme Court precedent makes clear a plaintiff cannot obtain
non-statutory injunctive relief under Ex parte Young merely by asserting
government action will cause him an Article III injury. He must also explain
how, at a bare minimum, the law under which the government threatens to
act violates his legally protected rights. 12
        The plaintiffs do no such thing. They allege only that Texas’s
enforcement of S.B. 4 will cost them money and affect their organizational
missions. See, e.g., Las Americas Br. at 14. But the plaintiffs do not have some
statutory or constitutional right to pursue their organizational missions free
from incidental burdens imposed by enforcement of the laws of the State of
Texas against third parties. So even assuming the plaintiffs have suffered an



        _____________________
        12
          Importantly, the scope of federal courts’ non-statutory equity powers is distinct
from federal courts’ power to grant relief under the APA. The APA cause of action
authorizes courts to grant relief to any person “adversely affected or aggrieved by agency
action within the meaning of a relevant statute.” 

. Under Supreme Court
precedent, that provision authorizes courts to grant relief to a broader class of persons than
would meet the “legal right” test articulated by the Court in Tennessee Electric. See, e.g.,
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 

, 230 n.4 (1986) (applying the
“zone of interests” test). But here, Congress has not expanded the class of persons who
may obtain equitable relief. So the “legal right” test still applies.




                                             141
                                         No. 24-50149


injury in fact, it is “damnum absque injuria, and will not support . . . a right to
sue.” Tenn. Elec., 

 (italics added).
        That makes sense. Consider what it would mean if the plaintiffs were
right that they could get into equity merely by alleging indirect economic
injuries. It would mean anyone could sue for pre-enforcement injunctive
relief from “a state law so long as they could plausibly allege enforcement of
the law against unidentified third parties would cost them a dollar.” United
States v. Texas (“Texas 2024”), 

, 310–11 (5th Cir. 2024)
(Oldham, J., dissenting). And universal injunctive relief would at least be on
the table, because no lesser relief could actually remedy an indirect economic
injury. See Las Americas Response to Rule 28(j) Letter at 2 (Apr. 19, 2024)
(“Texas has never even tried to explain how something less than a statewide
injunction would provide complete relief for the Las Americas plaintiffs—
two organizations and a municipality harmed by the systemic application of
S.B. 4.”); see also Trump v. CASA, Inc., 606 U.S. ---, --- (2025), 

, at *11–12 (explaining the “complete relief” principle). So the limit
on Ex parte Young I have explained is yet another important limit that
prevents plaintiffs from finding workarounds to the longstanding principle of
equity—finally vindicated by the Supreme Court—that federal courts may
not issue universal injunctions. See CASA, 

, at *8. 13
        _____________________
        13
             In CASA, the Supreme Court recognized two other critical limits applicable here.
        First, the complete relief principle. Although the complete relief principle means a
court may issue sweeping injunctive relief when necessary to give complete relief to a party,
the court should more narrowly tailor its injunction when the plaintiff’s injury is minimal
and sweeping relief would impose a massive burden on the defendant. See 

 at *15–17
(Thomas, J., concurring); see also id. at *12 (majority opinion). Here, the minor, incidental
burdens on Las Americas hardly justify the district court’s universal injunction.
       Second, third-party standing. See id. at *4 n.2. Third-party standing imposes an
important limit on plaintiffs who seek sweeping injunctive relief even though they “are not




                                              142
                                        No. 24-50149


        Moreover, reading Ex parte Young as the majority does to permit any
plaintiff with Article III standing to sue in equity would vest federal courts
with equitable powers unknown at the Founding. That is a problem. Under
Grupo Mexicano de Desarrollo SA v. All. Bond Fund, Inc., 

 (1999),
courts may issue non-statutory injunctive relief only if that relief has “a
founding-era antecedent.” CASA, 

, at *8; see also 

(explaining that non-statutory injunctive relief is available only if it or “a
sufficiently comparable predecessor was available from a court of equity at
the time of our country’s inception”); supra, at 138 n.11. Ex parte Young is no
exception. See CASA, 

, at *8 n.9. But the majority’s read of
Ex parte Young takes that case far afield from what the Supreme Court has
deemed its historical origins—namely, the “historical[]” power of “a court
of equity” to “issue an antisuit injunction to prevent an officer from engaging
in tortious conduct.” 

 Because the anyone-with-standing-can-sue-under-
Ex-parte-Young approach to equity “lacks a historical pedigree, it falls outside
the bounds of a federal court’s equitable authority.” Id. at *8.
        In sum, the plaintiffs’ theory is deeply misguided. Ex parte Young
permits federal courts to grant injunctive relief to protect plaintiffs’ legal
rights. It does not permit federal courts to “govern an entire State” merely

        _____________________
directly subject to the challenged policy in the relevant respect and face, at most, collateral
injuries.” See id. at *18 (Alito, J., concurring). Third-party standing prevents the plaintiffs
here from working around the limits on universal injunctions. There is no apparent
“hindrance” to the third-party aliens’ “ability to protect [their] own interests.” Kowalski
v. Tesmer, 

 (2004); see also 

 (holding there is no hindrance if
the third party may vindicate his rights in state criminal proceedings). At most, an alien
who remains outside the United States but has plans to enter illegally might have trouble
challenging S.B. 4 in a pre-enforcement posture. But that is irrelevant because there is no
“unqualified right to pre-enforcement review of constitutional claims in federal court.”
Whole Woman’s Health v. Jackson, 

, 49 (2021). Moreover, the plaintiffs have no
“close relationship” with hypothetical future clients or residents. See Kowalski, 

.




                                             143
                                  No. 24-50149


because one plaintiff with Article III standing asked. Labrador v. Poe by &
through Poe, 

, 926 (2024) (Gorsuch, J, concurring in the grant
of a stay).
                                       B
       Neither case cited by the majority—Truax v. Raich and Pierce v. Society
of Sisters—is to the contrary.
       Truax dealt with an Arizona law that limited certain employers’ ability
to hire immigrant workers. See 

. Mike Raich, an Austrian native
and Arizona resident, worked as a cook at William Truax’s restaurant. 

. After the law was passed, and solely because of fear of prosecution under
the law, Truax informed Raich that he would be fired. 

 Raich sued Truax,
the Arizona Attorney General, and the local county attorney. 

 The
Supreme Court held that Raich could sue in non-statutory equity. 

 at 38–
39. In Pierce, Oregon passed a law requiring parents to send their children to
public school. 

. Some corporations that owned and operated
private schools sued. 

. Relying on Truax, the Court permitted the
corporations to sue in equity. See 

 at 535–36.
       If anything, both cases confirm my analysis of Ex parte Young. In
Truax, the Supreme Court said a federal court could enjoin enforcement of
the Act because that was “essential to the safeguarding of rights of
property.” 

; see also 

 (discussing Lochner-era conceptions
of liberty and property such as the “right to earn a livelihood and to continue
in employment unmolested by efforts to enforce void enactments”); 

(explaining that the legislation interfered with the “right” of “lawful
inhabitants . . . to work for a living in the common occupations of the
community,” a right that was “of the very essence of the personal freedom
and opportunity that it was the purpose of the [Fourteenth] Amendment to
secure”). The Court offered another theory, too. It said an injunction was




                                      144
                                 No. 24-50149


proper because it would block the State from tortiously interfering with the
plaintiff’s employment contract. See 

 (explaining that “the unjustified
interference of third persons is actionable” even if “employment is at will”).
But on either theory, the Supreme Court did only what Tennessee Electric later
said courts could do: intervene to protect against the invasion of “a legal
right,—one of property, one arising out of contract, [or] one protected
against tortious invasion.” 

.
       So too in Pierce. The Court held the corporations could sue in equity
only because they had “business and property for which they claim
protection” that “were threatened with destruction.” 

; see
also 

 (holding that the corporations could seek injunctive relief to
protect “their business and property” from “arbitrary, unreasonable, and
unlawful interference”). So Pierce is yet another example of the chancellor
intervening only to protect against the invasion of “legal right[s]” such as
rights “of property.” Tenn. Elec., 

.
       Nor in any way did the Court embrace the proposition that random
people could sue under Ex parte Young just because they might incidentally
suffer some harm when the statute is enforced against absent third parties.
As I explained above, barring an employer from hiring an employee for a job
can be thought of as equivalent to barring the employee from holding that job.
See supra, at 112. So the law in Truax was deemed “to operate directly” upon
the immigrant-employee Raich just as much as the employer Truax. Truax,

. And it was “idle to call the injury indirect or remote.” 

. So too in Pierce. “[E]ven though” in one sense the “parents were the
directly regulated parties,” in another sense the state law “prohibit[ing]
parents from sending their children to private schools” regulated the schools,
too. Diamond Alt. Energy, 

, at *9 (discussing Pierce, 268 U.S.
at 535–36). So neither case stands for the proposition that incidentally
affected parties—like the plaintiffs here—may patrol the galaxy for any



                                     145
                                       No. 24-50149


unlawful behavior that might impose $1 of costs upon them thirty links down
the causal chain. 14 Both cases reaffirm that plaintiffs may sue in non-statutory
equity to protect against violation of their own legal rights.
                                            C
        The plaintiffs lodge only one counterargument. They contend the
requirement that an Ex parte Young plaintiff must assert a violation of some
legally protected right is not “borne out in the cases.” Oral Arg. at 55:09-11.
This assertion is particularly confounding because the requirement is borne
out in numerous cases, including Tennessee Electric, Perkins, and Stark. But
the plaintiffs tell us that does not matter because they think other binding
precedents hold that indirect economic injuries are cognizable in equity. For
that proposition they cite two authorities: Ex parte Young itself and Book
People, Inc. v. Wong, 

 (5th Cir. 2024). See Oral Arg. at 55:11-56:06.
They misunderstand both.
        Start with Ex parte Young. That case was an original habeas action in
the Supreme Court. Andrew S. Oldham, Adam I. Steene, & John W.
Tienken, The Ex parte Young Cause of Action: A Riddle, Wrapped in a Mystery,
Inside an Enigma, 120 Nw. U. L. Rev. (forthcoming 2026) (manuscript at
1). It arose after Minnesota passed a railroad rate regulation law. See 

 at 1–
2. Railroad company shareholders filed a cluster of lawsuits against their
corporations to forbid them from complying with the law. Id. at 2. The
shareholders also sued Minnesota’s Attorney General, Edward T. Young, to
        _____________________
        14
           This interpretation accords with Armstrong v. Exceptional Child Center, Inc., 

 (2015). Armstrong suggested Ex parte Young might presumptively be available in a
suit to enjoin “preempted” “state regulatory action” by “an individual” who “claims
federal law immunizes him from state regulation.” 

 (emphasis added) (citing Ex
parte Young, 209 U.S. at 155–56). The court did not suggest that unregulated parties could
sue because of incidental injuries suffered as a result of the State’s allegedly preempted
regulation of someone else.




                                            146
                                 No. 24-50149


stop him from enforcing the law. 

 The circuit court agreed with the
shareholders, so it issued a preliminary injunction against Young. Ibid.; see
also Perkins v. N. Pac. Ry. Co., 

 (C.C.D. Minn. 1907). The Attorney
General disobeyed the injunction, and the circuit court held him in contempt.
Ex parte Young, 209 U.S. at 133–34. Young then filed a habeas petition to
challenge the contempt finding on the ground that the circuit court’s
injunction was invalid. 

 at 126–27, 134. The Supreme Court disagreed. As
relevant here, the Court held the circuit court in Perkins did not exceed its
equitable jurisdiction by granting injunctive relief to the shareholders. See
Oldham et al., supra, at 3.
       The plaintiffs apparently think that holding resolves this case. Best I
can tell, they reason as follows: Minnesota’s rate regulation law applied to
railroads, not their shareholders. Since railroad shareholders were not
directly regulated by Minnesota’s law, the law caused them only indirect
economic injuries. The Supreme Court affirmed the circuit court’s
injunction. That must mean the Supreme Court implicitly held a plaintiff
may sue for non-statutory equitable relief from enforcement of a state law
even if that enforcement will cause him only indirect economic injuries?
       Respectfully, no. The railroad shareholders who sued in Perkins were
directly injured by Minnesota’s rate regulation law for the obvious reason
that the corporations were injured, and the shareholders own the corporations.
See, e.g., Perkins, 

. In fact, it would be more accurate to say the
railroad shareholders were asserting the corporations’ rights, because their
suit was a derivative one. See Oldham et al., supra, at 1–2. The shareholders
were allowed to sue Young only because they made demands on each
corporation’s managers to do the same, and the managers refused. Perkins,

. And the crux of the shareholders’ suit was that Minnesota’s
rate regulation law violated the corporations’ due process rights. See 

. So in essence, the shareholders in Perkins alleged injuries that arose



                                      147
                                   No. 24-50149


from a violation of the corporations’ legal rights, which they were entitled to
do by virtue of corporate ownership. That means they did not ask for
injunctive relief to prevent mere indirect economic injuries but rather to
prevent a certainly impending invasion of their own constitutional rights.
       The plaintiffs’ reliance on Book People v. Wong is even further afield.
That case involved a Texas law called the READER Act. The READER
Act proscribed “library-material vendors” from selling “library materials to
a school district” unless the vendor has “issued appropriate ratings” for the
materials. 

 (quotation omitted). Two booksellers who were
directly regulated by the Act sued Texas officials under 

 for
violating their First Amendment rights. See id. at 328. So this case had nothing
to do with Ex parte Young’s holding concerning non-statutory equitable
jurisdiction. 15 And in any event, the booksellers did not base their claim for
injunctive relief on indirect economic injuries. Rather, the booksellers alleged
the READER Act violated their own constitutional rights. So it is difficult
to understand how the plaintiffs could think that case supports their theory.
       In sum, the plaintiffs cannot muster a single case to support their novel
theory of non-statutory equity. Their alleged injury cannot even support
Article III standing, let alone injunctive relief under Ex parte Young.
                                        V
       Next, preemption. In my opinion dissenting from the panel majority’s
decision to deny Texas’s application for a stay, I explained at length why
S.B. 4’s arrest provisions are not preempted by federal immigration law. See
Texas 2024, 97 F.4th at 315–29 (Oldham, J., dissenting). And I explained that
because the district court’s injunction prevents Texas from enforcing any of
       _____________________
       15
          Perhaps the plaintiffs are confused because the opinion discussed Ex parte
Young’s other holding concerning state sovereign immunity. See id. at 334–36.




                                        148
                                  No. 24-50149


S.B. 4’s provisions—including the arrest provisions—the district court’s
injunction is overbroad. See id. at 329. Thus, even assuming any plaintiff
raises a justiciable claim, the district court’s injunction should be vacated. See
ibid. I also explained why the return provisions are not preempted. See id. at
329–31. Here, I raise several additional points.
       I (A) begin with a few preemption principles. We must presume there
is no preemption. And coincidence with federal law makes preemption less
likely. Then I (B) show why Texas’s law is plainly not field preempted.
Congress affirmatively invited the States to participate in the field of entry
and removal of aliens, so it cannot be said that Congress ousted the States
from this expansive field entirely. Finally, I (C) address conflict preemption.
I show there is at least one constitutional application of S.B. 4’s arrest and
return provisions. That is enough to avoid facial preemption of S.B. 4.
                                       A
       I start with two general principles and their application in this case.
       First, consider the “presumption against the pre-emption of state
police power regulations.” Cipollone v. Liggett Grp., Inc., 

(1992). The central “teaching” of the Court’s preemption jurisprudence
forbids “seeking out conflicts between state and federal regulation where
none clearly exists.” English v. Gen. Elec. Co., 

 (1990)
(quotation omitted) (emphasis added). This is true in “all pre-emption
cases,” but this presumption has special force when a State is exercising its
traditional police powers. Medtronic, Inc. v. Lohr, 

 (1996)
(plurality opinion). As the Court has articulated many times, “the historic
police powers of the States are not superseded unless that was the clear and
manifest purpose of Congress.” Arizona v. United States, 

(2012) (emphasis added) (quotation omitted). Nothing short “of an




                                       149
                                 No. 24-50149


unambiguous congressional mandate to that effect” will do. Fla. Lime &
Avocado Growers, Inc. v. Paul, 

, 146–47 (1963).
       This makes sense because “the [S]tates are sovereign,” Parker v.
Brown, 

 (1943), and “preemption of state laws represents ‘a
serious intrusion into state sovereignty,’” Va. Uranium, Inc. v. Warren, 

 (2019) (lead opinion of Gorsuch, J.) (quoting Medtronic, 

). That rationale applies no matter which category of preemption
is at issue because implied field preemption and implied conflict preemption
“are not rigidly distinct.” 

 at 773 (quoting Crosby v. Nat’l Foreign Trade
Council, 

 (2000)).
       Restrictions on persons entering a State from a foreign country have
historically been within the States’ domain. See, e.g., Mayor of New York v.
Miln, 

, 132–33 (1837) (explaining that state laws “prevent[ing the
State] from being burdened by an influx of persons . . . from foreign
countries” are “regulation[s], not of commerce, but police” that are “within
the competency of the states”); Gerald L. Neuman, The Lost Century of
American Immigration Law (1776-1875), 

, 1846–59
(1993) (listing numerous examples of early state regulations of immigration,
including “entry” and “removal” of immigrants); Arizona, 567 U.S. at 417–
422 (Scalia, J., concurring in part and dissenting in part) (providing robust
historical support); J.A.C. Grant, The Scope and Nature of Concurrent Power,

, 1002 (1934) (finding “conclusive proof” that the
first “Congress did not consider its authority over naturalization to be
exclusive”). As such, S.B. 4 is presumptively valid and is not “lightly”
deemed preempted. See Parker, 

. Rather, the plaintiffs (and the
majority) must point to clear evidence of real conflicts between state and
federal law, and it cannot imagine or manufacture them.




                                     150
                                     No. 24-50149


       Second, state laws that coincide with federal laws make preemption
much less likely. Take California v. Zook, 

 (1949), for example.
In that case, California passed a statute that was “substantially the same” as
a federal statute. 

 at 726–27. “Both . . . require[d] respondents to sell
transportation only in carriers having permits from the I.C.C.” 

.
When California enforced its law against respondents, respondents claimed
that California’s law was preempted because “coincidence is as ineffective
as opposition, and State laws aiding enforcement are invalid.” 

(quotation omitted).
       The Court rejected that theory. As the Court put it, the “fact of
identity does not mean the automatic invalidity of State measures.” 

. In fact, applying that theory “in an area as imbued with the state’s
interest as is this one would lead” to an absurd conclusion: A host of state
legislation—from “fraud” to ordinary criminal prosecutions—would be
preempted. 

. All this “to satisfy a congressional purpose which
would be only the product of this Court’s imagination.” 

 at 732–33.
Identity was crucial to the Court’s analysis: “The case would be different if
there were conflict in the provisions of the federal and California statutes.
But there is no conflict in terms, and no possibility of such conflict, for the
state statute makes federal law its own.” 

. And thus “the State may
punish as it has in the present case for the safety and welfare of its inhabitants;
the nation may punish for the safety and welfare of interstate commerce.
There is no conflict.” 

.
       As our court recently explained, that makes sense of “preemption first
principles.” Zyla Life Scis., LLC v. Wells Pharma of Hou., LLC, 

 (5th Cir. 2025). Preemption is grounded in the Supremacy Clause. See
City of Philadelphia v. New Jersey, 

 (1977) (per curiam). “But
as the Supreme Court explained over a century ago, when state law mirrors
federal law, it ‘recognizes the supremacy of the national law’ by



                                         151
                                  No. 24-50149


‘conform[ing] to it.” Zyla, 

 (quoting Asbell v. Kansas, 

 (1908)).
       True, if “Congress intended to make its jurisdiction exclusive” and
occupy the field, state legislation can be preempted by identical federal law.
Zook, 

. But to latch onto coincidence as a factor counseling in
favor of preemption of any kind “beg[s] the only controversial question.”

 And Congress itself rejected that approach to preemption 200 years ago.
See Zyla, 134 F.4th at 332–34 (discussing Houston v. Moore, 

 (1820), and the congressional response to it).
       Here, because S.B. 4’s provisions mirror federal statutes and federal
objectives, conflict preemption is impossible, and field preemption is no more
likely. As the Supreme Court put it:
       The mere fact that state laws . . . overlap to some degree with
       federal criminal provisions does not even begin to make a case
       for conflict preemption. From the beginning of our country,
       criminal law enforcement has been primarily a responsibility of
       the States, and that remains true today. . . . Our federal system
       would be turned upside down if we were to hold that federal
       criminal law preempts state law whenever they overlap, and
       there is no basis for inferring that federal criminal statutes
       preempt state laws whenever they overlap.
Kansas v. Garcia, 

, 211–12 (2020); see also Richard H.
Fallon et al., Hart & Weschler’s Federal Courts and
the Federal System 680 (7th ed. 2015) [hereinafter Hart &
Wechsler (7th ed.)] (“Generally, federal law permits parallel or
supplemental state law to co-exist.”). And this straightforward application of
basic preemption principles does not change merely because S.B. 4 touches
on immigration. The States retain “some authority to act with respect to
illegal aliens, at least where such action mirrors federal objectives and furthers




                                       152
                                 No. 24-50149


a legitimate state goal.” Plyler v. Doe, 

 (1982) (emphasis
added).
                                      B
       With those principles in mind, I turn to field preemption. Aside from
the problems I noted previously, see Texas 2024, 97 F.4th at 317–24 (Oldham,
J., dissenting), there is another significant problem with finding field
preemption here: (1) Congress has affirmatively authorized States to
participate in immigration enforcement. It should go without saying that
Congress does not preempt the field by inviting States to play on it. In spite
of this, (2) the majority throws caution to the wind and significantly extends
Arizona. That is the opposite of how courts should approach field-
preemption questions.
                                      1
       All preemption constitutes “a serious intrusion into state
sovereignty.” Va. Uranium, 

 (lead opinion of Gorsuch, J.). But
field preemption works an even more remarkable encroachment on the
States, for it excludes States from entire domains. That is true even when
state laws are entirely consistent with federal law. See Arizona, 

. For that reason, field preemption “is not easily established.” Hart &
Weschler (7th ed.), supra, at 679. Indeed, the Court has recently called it
“rare.” Garcia, 

. The majority ignores those cautions. It goes
out of its way to find field preemption here, despite having to extend all
existing precedent to do so.
       It makes no sense to say the States are preempted from the field when
numerous federal statutes throughout the United States Code establish that
Congress affirmatively welcomes state enforcement of and participation in
regulating the entry and removal of unlawful aliens. Just consider a small
sampling.




                                     153
                                 No. 24-50149


       “State and local law enforcement officials are authorized to arrest and
detain an individual who” is “an alien illegally present in the United States,”
and has been convicted of a felony and previously deported or left the
country, if federal officials confirm the alien’s status. 8 U.S.C. § 1252c(a).
True, the time of detention is limited to the “period of time as may be
required for [INS] to take the individual into Federal custody for purposes
of deporting or removing the alien.” Ibid. But that does not change the fact
that Congress allowed States to arrest and detain unlawful aliens.
       The “Attorney General may enter into a written agreement with a
State” and thereby permit certain State officials “to perform a function of an
immigration officer in relation to the investigation, apprehension, or
detention of aliens in the United States.” Id. § 1357(g)(1). Moreover, no
agreement is required for States to “communicate with the Attorney General
regarding the immigration status of any individual, including reporting
knowledge that a particular alien is not lawfully present in the United
States,” or for States “otherwise to cooperate” in the “identification,
apprehension, detention, or removal of aliens not lawfully present in the
United States.” Id. § 1357(g)(10). Once again, as far as Congress is
concerned, state officials can enforce immigration laws touching on entry and
removal, including apprehension and detention of unlawful aliens.
       The list continues. Congress gave “all” officers responsible for
“enforc[ing] criminal laws”—including state officers—the authority to
arrest persons for bringing in and harboring certain aliens. Id. § 1324(c).
Congress required federal officials to “assist State and local law enforcement
officials in working with Federal law enforcement to obtain continued
presence for victims of a severe form of trafficking in cases investigated or
prosecuted at the State or local level.” 

(c)(3)(C). Congress
required federal “officers in charge of the various immigrant stations” to
“admit” state officials to “preserve the peace and make arrests” for state



                                      154
                                        No. 24-50149


crimes. 

. Congress made it a crime for aliens to “flee[]” state
officials near border checkpoints in excess of the speed limit. 

.
Congress gave the Attorney General the power to “authorize any State or
local law enforcement officer . . . to perform or exercise any of the powers,
privileges, or duties” of a federal immigration officer, if the Attorney General
finds that an “influx of aliens” requires an urgent response. 

(a)(10). And finally, States have the power to arrest and prosecute
persons      for   trafficking     or    trafficking    related     offenses.     See    

§ 1101(a)(15)(T)(i)(III)(aa), (a)(15)(U)(i)(III).
        These statutes welcome States to play a role in various matters
touching on the entry and removal of aliens. That is critical. These statutes—
not the last Administration’s non-enforcement priorities—are what
determine whether S.B. 4 is preempted. Why? Because “[t]he Supremacy
Clause gives priority to ‘the Laws of the United States,’ not the criminal law
enforcement priorities or preferences of federal officers.” Garcia, 

 (quoting U.S. Const. art. VI, cl. 2); see also 3 Joseph Story,
Commentaries on the Constitution of the United States
§ 1831 (1833) (“[T]he supremacy of the laws is attached to those only, which
are made in pursuance of the constitution. . . .”); Va. Uranium, 587 U.S. at
776–78 (lead opinion of Gorsuch, J.). Here, numerous statutory provisions
invite States to the field of entry and removal of aliens—the previous
Administration’s priorities to the contrary notwithstanding. 16

        _____________________
        16
           Regardless, to the extent presidential enforcement priorities are informative,
they would counsel against preemption here. The current Administration has quite literally
invited States to the field of entry and removal. Shortly after his inauguration, President
Trump issued an executive order that directed federal officials to begin “[c]ooperating fully
with State and local law enforcement officials in enacting Federal-State partnerships to
enforce Federal immigration priorities.” Securing Our Borders, 90 Fed. Reg. at 8467. That




                                            155
                                        No. 24-50149


        True, none of these laws affirmatively “authorize” S.B. 4. Ante, at 70–
71. This case would be easy if they did. But it has never been true that a state
statute is preempted unless it is affirmatively authorized by Congress. In fact,
the law is precisely the opposite: We presume that each sovereign is allowed
to enact its own laws, unless and until Congress says otherwise. And that
presumption is not overcome here. These statutes help establish that S.B. 4
does not undermine federal law by treading upon exclusively federal
territory. Congress repeatedly invited the States to enter.
        No field that the Court has deemed preempted, moreover, has
included analogous congressional authorizations. For example, several
aspects of grain warehousing are field preempted. See Rice v. Santa Fe
Elevator Corp., 

, 235–36 (1947). The field of “regulation of
aircraft noise” is preempted. City of Burbank v. Lockheed Air Terminal Inc.,

 (1973). The “wholesal[ing] of natural gas in interstate
commerce” is field preempted. Schneidewind v. ANR Pipeline Co., 

 (1988) (quotation omitted). The field of “nuclear safety” is
preempted. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev.
Comm’n, 

, 211–12 (1983) (explaining that “the federal
government maintains complete control of the safety and ‘nuclear’ aspects
of energy generation,” while “the states exercise their traditional authority

        _____________________
same day, the President issued another executive order, which authorized “State and local
law enforcement officials . . . to perform the functions of immigration officers in relation to
the investigation, apprehension, or detention of aliens in the United States.” Protecting the
American People Against Invasion, Exec. Order No. 14159, 

, 8445 (Jan.
20, 2025). In response, Governor Abbott issued several executive orders directing Texas
officials to assist in securing the border. See Tex. Gov. Exec. Order No. GA-50, 

 (2025); Tex. Gov. Exec. Order No. GA-51, 

 (2025); Tex. Gov.
Exec Order No. GA-52, 

 (2025); Tex. Gov. Exec. Order No. GA-53, 

 (2025); Tex. Gov. Exec. Order No. GA-54, 

 (2025).




                                             156
                                 No. 24-50149


over” economic matters). The “design, construction, alteration, repair,
maintenance, operation, equipping, personnel qualification, and manning of
tanker vessels” is field preempted. United States v. Locke, 

(2000) (quotation omitted). And the regulation of the “equipment of
locomotives” is field preempted. Kurns v. R.R. Friction Prods. Corp., 

 (2012) (quotation omitted). But Congress did not affirmatively
invite state regulation in any of those fields like it did in the INA. That is
presumably one reason why the Supreme Court has held that one and only
one field of immigration is preempted—alien registration. Hines v.
Davidowitz, 

, 70–74 (1941); Arizona, 

.
                                       2
       What does the majority opinion have to say about all this?
Unfortunately, a lot. But many pages of legal errors do not sum to a valid
argument.
       The majority concedes that Arizona was limited to alien registration
and that S.B. 4 says nothing about registration. But the majority is so
confident in its analysis that it plows ahead anyway, concluding that the entire
field of “entry into and removal from the United States” is preempted. Ante,
at 53–54. In doing so, it breaks new ground, extending Arizona far beyond
what the Supreme Court has ever before held.
       This extension of precedent is deeply problematic for many reasons.
Begin with a repeated instruction from the Supreme Court: Courts must
“narrowly” define the relevant field. Hart & Weschler (7th ed.), supra,
at 679. But the majority’s defined field sweeps in a swath of state laws that
touch on entry and removal, including traditional offenses such as criminal
trespass. What’s more, the majority’s reasoning is suspect. The majority
largely relies on broad statements about Congress’s and the Executive’s
power over immigration. Of course, Congress and the President have




                                      157
                                  No. 24-50149


substantial power over immigration. And of course, immigration has
numerous important foreign policy implications. But the majority’s
reasoning proves too much. There is no field preemption of all of immigration
law. If there were, Arizona and Hines would have been far easier. Moreover,
Arizona itself found that part of the State’s law was not preempted. See 

. That apparently does not matter to the majority, which finds field
preemption anyway. And the majority’s underruling of Supreme Court
precedent does not stop there: It also red-flags Kansas v. Garcia, 

,
DeCanas v. Bica, 

 (1976), and Chamber of Commerce v. Whiting,

 (2011).
                                       *
       The majority runs roughshod over the presumption against
preemption and its attendant federalism concerns, which are especially
weighty in the field preemption context. It ignores numerous statutes that
invite States to the field of entry and removal of aliens. And it goes far beyond
Arizona’s holding. Its decision cannot be squared with the INA, Arizona, or
basic field preemption principles.
                                       C
       Neither does S.B. 4 impliedly conflict with federal purposes,
objectives, or statutes. See Texas 2024, 97 F.4th at 324–31 (Oldham, J.,
dissenting). I (1) provide a word about the proper standards of analysis. I then
(2) explain that S.B. 4’s arrest provisions are entirely consistent with the
purposes and objectives of the INA. Next, I (3) explain that it is not at all
clear how S.B. 4 will be enforced. That makes it impossible to say S.B. 4’s
return provisions will, in its future enforcement, trip upon one of Congress’s
purposes or objectives. Finally, I (4) address the majority’s main response.




                                      158
                                 No. 24-50149


                                      1
       A state law is preempted if it creates an “obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.” Wyeth v. Levine, 

, 563–64 (2009) (quotation
omitted). “[T]he purpose of Congress is the ultimate touchstone in every
pre-emption case.” 

 (quotation omitted). The inquiry, however,
“must be grounded in the text and structure of the statute at issue.” Garcia,

 (quotation omitted). And it is worth emphasizing again that
preemption comes only from statutes—not from Executive enforcement
priorities, important though they are. See 

 at 212 (citing U.S. Const. art.
VI, cl. 2). The question here is thus whether S.B. 4 interferes with purposes
that Congress expressed in the text of the INA.
       Still, the plaintiffs brought a facial challenge, and that choice “comes
at a cost.” Moody v. NetChoice, LLC, 

 (2024). Because facial
challenges create serious practical and legal problems, they are “disfavored,”

, and “hard to win,” 

; see also 

 at 749–66 (Thomas, J.,
concurring in the judgment) (arguing that facial challenges are inconsistent
with Article III and “create practical problems”). So finding some
“hypothetical scenarios where [S.B. 4] might” conflict with federal law is not
enough to preempt S.B. 4 in its entirety. United States v. Rahimi, 

 (2024). The reverse is true. As the Court instructed just this last
Term, in all cases outside the First Amendment, courts must apply United
States v. Salerno, 

 (1987). See Moody, 

. Even in
cases involving no constitutional claims at all, courts may need to apply the
Salerno test. See Bondi v. VanDerStok, 

, 892 (2025) (Alito, J.,
dissenting); 

 at 866 n.2 (majority opinion). And under Salerno “the
challenger must establish that no set of circumstances exists under which the
[law] would be valid.” 

 (emphasis added). In other words, if




                                     159
                                 No. 24-50149


there is even one hypothetical constitutional application of a law, a facial
challenge fails.
       This is as true in the preemption context as elsewhere. Our court has
held that Salerno applies in the context of preemption challenges. See Zyla,

 n.2. Consider also California Coastal Commission v. Granite
Rock Co., 

 (1987). There, a mining company challenged a
California permit requirement on the ground that the requirement was
preempted by federal law. In rejecting that argument, the Court explained
that “[t]o defeat Granite Rock’s facial challenge, [California] needed merely
to identify a possible set of permit conditions not in conflict with federal
law.” 

; see also Anderson v. Edwards, 

, 155 n.6 (1995)
(applying the Salerno standard in a preemption case).
       The majority suggests Salerno’s “no-set-of-circumstances” standard
does not apply to facial preemption challenges because the Supreme Court
did not apply Salerno when it analyzed § 6 of S.B. 1070 in Arizona. See ante,
at 47 & n.234. But the Arizona Court did not decline to apply Salerno because
it failed to cite Salerno; it simply assumed Salerno was satisfied. Did Arizona
overrule Lujan because it failed to cite it or even conduct a standing inquiry?
Obviously not.
       The majority’s suggestion is mistaken for three additional reasons.
First, to hold that Arizona sub silentio overruled Granite Rock and Anderson
merely by declining to apply Salerno would be to ignore the Supreme Court’s
constant reminder that it does not overrule “earlier authority sub silentio.”
Shalala v. Ill. Council on Long Term Care, Inc., 

 (2000). Second,
the Supreme Court has consistently commanded that “[i]f a precedent of this
Court has direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of overruling its




                                      160
                                  No. 24-50149


own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 

 (1989). Third, the Supreme Court held just this last Term that every
non-First Amendment facial challenge is governed by Salerno. See Moody, 

. So despite the majority’s protestations, Salerno governs.
       Eventually, the majority begrudgingly accepts that. But its preemption
analysis does not even attempt to grapple with hypothetical applications of
S.B. 4 that are constitutional. Instead, it applies the inverse-Salerno doctrine:
It looks for one possible unconstitutional application here, and another there,
and then concludes that S.B. 4 is facially preempted. See, e.g., ante, at 78–79
(finding a “significant[] conflict” because there are some illegal aliens that
the Federal Government would hypothetically remove to a country other
than Mexico); id. at 79 (arguing that a “conflict is imminent,” i.e., there is a
possible conflict, when federal and state remedies are not identical); id. at 86
(finding a conflict because allowing state officials to arrest illegal aliens
“might” allow those officials “to harass aliens”). But when federal and state
statutes “brush up against each other,” our “task is to seek harmony, not to
manufacture conflict.” Rahimi, 

 (quotation omitted).
                                       2
       What was Congress’s purpose in enacting the INA? As relevant here,
Congress intended to prohibit aliens from entering the country through a
place other than a port of entry. See 

(a). It also intended to
prohibit entry or re-entry into the country by an alien that had already “been
denied admission, excluded, deported, or removed or ha[d] departed the
United States while an order of exclusion, deportation, or removal [was]
outstanding.” 

 § 1326(a). And it intended to make such aliens removable
unless they have a federally protected immigration status. See, e.g., id.




                                       161
                                      No. 24-50149


§§ 1227, 1229a, 1158. In short, the purpose of the INA is to prohibit illegal
immigration. 17
        S.B. 4 shares that exact same purpose. And it does so by expressly
tethering itself to federal law.
        The purpose of the INA is not to allow some unspecified amount of
illegal immigration. There is no golden mean of illegal immigration as far as
the laws of the United States are concerned. Cf. Aristotle,
Nicomachean Ethics bk. II (Lesley Brown ed., David Ross trans.,
Oxford World’s Classics 2009) (c. 350 B.C.). All of it is, well, illegal. That a
particular president might tolerate illegal immigration is of no moment
because Congress’s purpose—which is all that matters—was to prohibit it.
        Consider this example. The current Administration has sought
Texas’s help in remedying the problem of illegal immigration. So imagine
Texas, in response, uses S.B. 4 and other state resources to identify convicted
criminals who have re-entered the country illegally, who are subject to final
orders of removal, and who can be removed to Mexico without risk of
persecution. And imagine that Texas obtains confirmation and approval from
federal officials that Texas can arrest and detain a group of such aliens. Can
Texas arrest them? Surely the answer to that question is “yes.” But what
would be the difference between this hypothetical and one set during the
previous Administration? There is only one: the position of the Executive



        _____________________
        17
           Of course, there are higher-order purposes for wanting to cut off illegal
immigration. See, e.g., INS v. Errico, 

 (1966) (noting that Congress
intended to restrict immigration via the INA to keep “harmful aliens out of the country”);
INS v. Nat’l Ctr. for Immigrants’ Rts., Inc., 

 (1991) (“We have often
recognized that a primary purpose in restricting immigration is to preserve jobs for
American workers.” (quotation omitted)).




                                           162
                                   No. 24-50149


Branch. And that does not carry preemptive power—only statutes do. See
Garcia, 589 U.S. 211–12.
       The majority claims that various other provisions, such as §§ 1252c,
1103(a)(10), 1357(g), and 1324(c), conflict with S.B. 4. But the exact same
illustration applies here, too. It might be true that the Biden Administration
generally opposed States’ efforts to fight the immigration crisis. But the
Trump Administration not only permits, but wants, States to help arrest and
detain illegal immigrants. It would be absurd for preemption to turn on the
position of the Executive Branch when it changes with elections. And indeed,
it does not. See Garcia, 589 U.S. 211–12. The question is whether S.B. 4 is an
obstacle—in every possible hypothetical application—to Congress’s
purposes as expressed in the text of federal statutes. It is not. This simple
illustration reveals the majority’s failure to take seriously the test set forth in
Salerno. The majority does not grapple with the fact that there is at least one
application of S.B. 4’s arrest provisions that is not in conflict with
congressional purposes.
       In response, the majority attempts to argue that S.B. 4’s arrest and
return provisions are preempted in every possible application because the
INA has given the Executive Branch exclusive enforcement authority. See
ante, at 80. That fails, too. As all agree, there is no express provision granting
such exclusive authority to the Executive Branch. (This is implied obstacles
and purposes preemption we are dealing with, after all.) And it is not enough
that the INA grants extensive enforcement discretion to the Executive
Branch. As our court recently held, “many federal statutes grant the
Executive Branch extensive enforcement discretion,” but “those statutes do
not preclude parallel . . . state regulation of the same conduct.” Zyla, 

. And the Supreme Court has itself recently held that distinct
state regulation is not preempted by federal immigration law. See Garcia, 589




                                       163
                                  No. 24-50149


U.S. at 198, 212. “If that does not conflict with federal enforcement
prerogatives, neither does parallel state regulation.” Zyla, 

.
       Finally, think about the upshot of the majority’s analysis. The upshot
is that federal law allows Director Martin to “arrest tens of thousands of aliens
that are in Texas illegally.” Ante, at 80. If federal law allows such arrests, how
in the world could arresting aliens in Texas illegally under S.B. 4 somehow
conflict with federal purposes? At a bare minimum, such arrests are wholly
consistent with federal law, as the majority concedes.
                                        3
       In Texas 2024, I explained the district court erred by facially enjoining
S.B. 4’s return provisions before Texas ever enforced those provisions
against anyone. That is because there is considerable uncertainty about how
those “provisions would operate in practice.” 

 (Oldham, J.,
dissenting). It makes little sense to facially enjoin enforcement of a law in the
face of such uncertainty because the burden is on the challenger to prove that
there is not even one constitutional application of the law. Salerno, 

 (“[T]he challenger must establish that no set of circumstances exists
under which the [law] would be valid.”).
       The panel majority nonetheless refused to stay the district court’s
universal, facial, preliminary, pre-enforcement injunction. It did so in large
part because it concluded that in enforcing S.B. 4, Texas might remove an
alien “before federal proceedings that would permit her to remain in the
United States lawfully have been initiated or concluded.” Texas 2024, 

.
       At oral argument, Texas told us the majority’s concerns were
unfounded. It explained that S.B. 4 does not permit Texas officials to seek
removal of anyone from the United States. See Oral Arg. at 10:13–15:16; 

 at
10:46–48 (“Texas does not deport anybody.”). Instead, the Attorney




                                       164
                                  No. 24-50149


General expects that Texas officials will enforce the return provisions by
taking an alien who violates S.B. 4’s entry provisions to a lawful port of entry
so that the Federal Government can process the alien and decide what to do
pending the alien’s removal proceedings. See 

 at 10:47–51 (“Texas takes
[the alien] to the port of entry, and the United States then decides what to
do.”).
         Thus, according to the Texas Attorney General, enforcement of
S.B. 4 will work like this: If Texas discovers that an alien crossed the border
somewhere other than a lawful port of entry, Texas will prosecute that alien.
Tex. Pen. Code § 51.02(a). If the alien consents to return to the nation
from which he entered the United States, the judge may dismiss the charge
and enter a return order. Tex. Code Crim. Proc. art. 5B.002(a)–(c).
Texas will execute the return order by taking the alien to a lawful port of entry
and turning him over to the Federal Government. If the charge is not
dismissed, the alien may be convicted, sentenced, and ordered returned to
the nation from which he entered the United States. Tex. Pen. Code
§ 51.02(b); see also supra, at 127–28 & n.9 (explaining the varying
punishments for certain kinds of offenses). After the alien serves his term of
incarceration, Texas will execute the return order by taking the alien to a
lawful port of entry and turning him over to the Federal Government. That
is it.
         It is hard to see how the return provisions could be preempted if they
are enforced as Texas’s Attorney General understands them. It is one thing
to argue Congress enacted a removal system so comprehensive that Texas
would interfere by unilaterally removing an alien to a foreign country. It is
quite another to argue Texas could interfere with Congress’s purposes by
turning an alien over to the Federal Government so it can place the alien in
the very system Congress devised. It is impossible to say the latter application




                                       165
                                   No. 24-50149


of S.B. 4 conflicts with federal law, and that dooms plaintiffs’ facial
challenges.
       The plaintiffs seemed to concede that Texas’s enforcement of the
return provisions would not conflict with federal law if DPS officers enforce
them in the manner Texas described at oral argument. But the plaintiffs
nonetheless defended the district court’s decision to facially enjoin
enforcement of the return provisions, mostly because the plaintiffs disagree
with the Attorney General’s reading of state law. See Oral Arg. at 26:31–
27:55. The majority today does the same. At bottom, then, the majority’s
holding rests on this: It does not believe the Attorney General’s
representations about how the State will enforce its law. But it has long “been
the settled practice of the Court, in contexts no less significant, fully to accept
representations such as these as parameters for decision.” DeFunis v.
Odegaard, 

 (1974). And at bare minimum, the Attorney
General’s representations underscore the considerable uncertainty
concerning how S.B. 4 will be enforced. You might think that would counsel
in favor of letting the law go into effect and seeing if the State honors federal
law. Instead, the majority presumes that the Attorney General is lying. And
it chooses to enjoin first and ask questions never.
       Even assuming the plaintiffs are right, that argument still would not
justify the district court’s facial pre-enforcement injunction. That is because
federal courts cannot enjoin laws; they can enjoin only “defendants from
taking specified unlawful actions.” Whole Woman’s Health v. Jackson, 

, 44 (2021). So what matters is how Texas plans to enforce the return
provisions, because all the district court had power to do was to enjoin Texas
officers from taking enforcement action that conflicts with federal law. Put
differently, it is of no concern to the federal courts that the return provisions
may authorize some unconstitutional action that no Texas official intends to
take. Without unconstitutional action, there is simply nothing to enjoin.



                                       166
                                  No. 24-50149


       To make things more concrete, consider the following hypothetical: A
State enacts a statute that makes it unlawful to dump toxic chemicals into
public waters. Section X of the statute further provides that when the statute
is violated, the district attorney “shall” seek, and state courts “shall” order,
statutory penalties of $1,000,000. The statute also contains a severability
clause that instructs the district attorney and the courts to give effect to every
conceivable constitutional application of the statute. A prospective defendant
(call him James) sues a state environmental enforcement officer in federal
court for pre-enforcement relief from § X of the statute. James alleges that
he intends to dump toxic chemicals into public waters, that the district
attorney has demonstrated an intent to enforce the statute against him, and
that a fine of $1,000,000 would be excessive under the Eighth Amendment.
The district attorney concedes that a $1,000,000 fine would violate the
Eighth Amendment, so he tells the court that if James violates the statute, he
will seek only a $100 fine. To make the hypo as illustrative as possible, James
concedes the Eighth Amendment allows $100 fines.
       Could the federal court issue a facial, pre-enforcement injunction
against § X’s $1,000,000 fine provision? I do not see how. As I have
explained, the court could not enjoin the statute itself. And the district
attorney represented that all he will do to enforce the statute against James is
seek a $100 fine. That fine does not violate the Eighth Amendment, so the
district attorney would not violate the Constitution by seeking it. The court
could not enjoin the district attorney from seeking a $100 fine because federal
courts obviously have no authority to enjoin lawful conduct. Nor should
federal courts enjoin enforcement actions that the defendant has disclaimed.
See Murthy, 

 (holding a plaintiff had no standing to demand an
injunction where the Government stopped censoring and disclaimed any
intention to do so again); cf. Susan B. Anthony List v. Driehaus, 

,
159 (2014) (explaining plaintiffs must allege a “credible threat of




                                       167
                                 No. 24-50149


prosecution” to lodge a pre-enforcement challenge). But even assuming a
federal court could enjoin the district attorney from taking an action he
disclaimed an intent to take, the injunction would have to be narrowly
tailored to prevent a constitutional violation. That means it would have to
specify, with particularity, the size of the fine the Eighth Amendment
permitted the district attorney to seek. If the court issued a broader
injunction, it would enjoin lawful action—something it may not do.
       James might argue that the officer’s representations do not matter
because § X uses mandatory language—the district attorney “shall” seek,
and state courts “shall” order, statutory penalties of $1,000,000. James
might therefore contend that the district attorney cannot seek lesser, Eighth
Amendment–compliant penalties. And if § X requires the district attorney to
seek a $1,000,000 fine, the court’s injunction need not be so precise.
       But in the law–enforcement context, “shall” does not always mean
“shall”; some enforcement discretion is generally preserved. See Town of
Castle Rock v. Gonzales, 

 (2005) (noting “law-enforcement
discretion” exists “even in the presence of seemingly mandatory legislative
commands”); see also Texas, 

 & n.4. There is accordingly no
reason the officer could not decide to pursue lesser penalties to avoid a
constitutional problem.
       What if James argues that § X’s mandatory language means the court
has no statutory authority to impose a fine in an amount less than
$1,000,000? Well, even if is true that the district attorney would violate state
law by seeking a fine under $1,000,000, it is beyond cavil that federal courts
cannot enjoin state officials on the basis of violations of state law. See
Pennhurst State Sch. v. Halderman, 

, 103–06 (1984). Moreover,
the question whether the State’s severability provision allows less-than-
$1,000,000 fines is a state-law severability question that, again, is irrelevant




                                      168
                                       No. 24-50149


to the federal court in a constitutional pre-enforcement challenge. Leavitt v.
Jane L., 

 (1996) (per curiam) (explaining that interpreting a
severability provision in a state statute is “a matter of state law”). In short, a
federal court could not grant James an injunction restraining the district
attorney from seeking a $100 fine.
        That hypothetical is essentially this case. Assume for the sake of
argument that the plaintiffs are correct—that a return order as contemplated
by the return provisions could require an alien to return to a foreign nation.
See Tex. Code Crim. Proc. art. 5B.002(d) (“On a person’s conviction
of an offense under [the arrest provisions], the judge shall enter in the
judgment in the case an order requiring the person to return to the foreign
nation from which the person entered or attempted to enter.”). Even if such
an order would conflict with federal law, that still would not justify the
district court’s facial injunction against any and all hypothetical applications
of S.B. 4. That is because Texas district attorneys and judges are entitled to
interpret the return provisions—in conjunction with S.B. 4’s severability
clause—to avoid constitutional problems. See S.B. 4, § 8 (“It is the intent of
the legislature that every provision, section, subsection, sentence, clause,
phrase, or word in this Act, and every application of the provisions in this Act
to every person, group of persons, or circumstances, is severable from each
other.”). 18

        _____________________
        18
           The majority downplays the significance of S.B. 4’s severability clause. See ante,
at 49–51. It relies exclusively on the Supreme Court’s decision in Whole Woman’s Health v.
Hellerstedt, 

 (2016)—one of many abortion cases that the Supreme Court has
noted “distort[ed]” numerous “legal doctrines,” Dobbs v. Jackson Women’s Health Org.,

 (2022). Anyway, Hellerstedt does not say what the majority thinks it says.
Because all the challenged provisions were facially unconstitutional there, the Court simply
concluded that the severability clause could not save those facially unconstitutional
provisions. See Hellerstedt, 579 U.S. at 624–25 (“The provisions are unconstitutional on




                                            169
                                       No. 24-50149


        At oral argument, Texas made clear its Attorney General had adopted
one such interpretation: District attorneys should not seek orders requiring
convicted aliens to return to a foreign nation; instead, they should seek orders
requiring convicted aliens to return to a lawful port of entry. That makes
perfect sense. The return provisions contemplate that execution of a return
order involves transporting an alien to a lawful port of entry. See Tex. Code
Crim. Proc. art. 5B.002(e)(1) (A return order “must include . . . the
manner of transportation of the person to a port of entry.”). So as best I (or
anyone else) can tell at this preliminary, pre-enforcement stage of the
proceedings, a return order really consists of two things: (1) an order
requiring the alien to let Texas transport him to a lawful port of entry; and
(2) an order requiring him to cross the border. Just as state officials could
conclude that the greater power to seek a $1,000,000 fine includes the lesser
power to seek a $100 fine, Texas officials could conclude that the greater
power to seek a full-fledged return order includes the lesser power to seek an
order authorizing Texas to transport an alien to a lawful port of entry. That
is especially true because the Texas legislature has instructed Texas officials
to give effect to every constitutional application of the return provisions. And
the question of how to apply that instruction is for Texas officials, not federal
courts. See Jane L., 

.
        All that demonstrates the trouble with the district court’s facial pre-
enforcement injunction. Texas’s Attorney General has proffered a seemingly
constitutional application of the return provisions. And any one of the 334

        _____________________
their face: Including a severability provision in the law does not change that conclusion.”).
That decision did not undermine the enforceability or relevance of a severability clause
when only part of a statute is deemed unconstitutional. Here, the return provisions are not
facially unconstitutional. So Hellerstedt provides no help for the majority. And even if the
return provisions are facially unconstitutional, S.B. 4’s severability clause reinforces the
fact that the arrest provisions should not be enjoined too.




                                            170
                                        No. 24-50149


district attorneys in Texas who help enforce S.B. 4 might come up with an
additional constitutional application. See State v. Stephens, 

, 50
(Tex. Crim. App. 2021) (noting that Texas district attorneys are responsible
for “prosecut[ing] the pleas of the state in criminal cases”). Yet the district
court decided that none of those district attorneys should have the
opportunity to attempt to enforce the return provisions in a constitutional
manner. 19
        Why? The district court must have concluded that if it did not grant a
global, facial injunction, Texas officials might attempt to enforce the return
provisions in a manner that violates the Supremacy Clause. That is
unfortunate. Federal courts are not supposed to “‘assume the States will
refuse to honor the Constitution,’ . . . because ‘States and their officers are
[also] bound by obligations imposed by the Constitution.’” DeVillier v.
Texas, 

 (2024) (quoting Alden v. Maine, 

(1999)); see Tex. Const. art. XVI, § 1(a) (“All elected and appointed
officers, before they enter upon the duties of their offices, shall take the

        _____________________
        19
             That even constitutionally dubious statutes might have constitutional
applications is one reason a proper Ex parte Young defendant must be “‘clothed with some
duty in regard to the enforcement of the laws of the state’” and must “‘threaten and [be]
about to commence’” enforcement of “an unlawful act against certain affected parties.”
United States v. Abbott, 

, 334 (5th Cir. 2023) (quoting Ex parte Young, 209 U.S.
at 155–56). Federal courts do not enjoin enforcement of statutes but rather enforcement of
unconstitutional applications of statutes. It is impossible for a court to predict whether a law
will be applied in an unconstitutional manner until some official reveals just how he plans
to enforce the law. If a court enjoins the official before that, it risks overstepping by
enjoining him from enforcing even constitutional applications. If the court waits until the
official reveals his plans, in contrast, it can adjudicate the constitutionality of a particular
application of the law in the context of a relatively concrete dispute. This pre-enforcement
challenge is thus especially troubling because there is no threatened proceeding to
concretize the otherwise abstract constitutional questions presented by the return
provisions. The closest thing we have is Texas’s representation about how its Attorney
General understands those provisions.




                                              171
                                  No. 24-50149


following Oath or Affirmation: ‘I . . . do solemnly swear (or affirm), that I will
faithfully execute the duties of [my] office . . . , and will to the best of my
ability preserve, protect, and defend the Constitution and laws of the United
States and of this State, so help me God.’” (emphasis added)).
       The vagaries in enforcement here counsel against the harsh remedy of
a pre-enforcement facial injunction because no one can tell what is going to
be preempted until Director Martin acts. We cannot simply presume that “a
defendant [will] be removed before federal [removal] proceedings . . . have
been initiated or concluded.” Ante, at 64.
                                        4
       The majority makes one final effort to avoid applying Salerno. The
majority suggests that my hypothetical applications of S.B. 4 run afoul of an
“important limit[] on the scope of the facial challenge inquiry”—namely,
that we must ignore any application of S.B. 4 that is “not already legitimately
authorized by other laws.” Id. at 47. In so holding, the majority primarily
relies on City of Los Angeles v. Patel, 

 (2015), which itself
primarily relies on Planned Parenthood of Se. Pa. v. Casey, 

 (1992).
       The majority is wrong. First, it is unclear Patel’s analysis of facial
challenges even survives Dobbs v. Jackson Women’s Health Organization, 

 (2022). Patel used Casey as its primary (sole?) authority in describing
how facial challenges should operate. See Patel, 576 U.S. at 418–19. But Casey
was one of many old cases that stretched legal doctrines to reaffirm abortion
rights. See Dobbs, 

, 286–87. As relevant here, Casey “diluted
the strict standard for facial constitutional challenges.” 

(juxtaposing the Salerno standard with Casey’s understanding of facial
challenges). So it should come as no surprise that Patel has been cited
precisely one time at the Supreme Court—in a Justice Thomas concurrence




                                       172
                                   No. 24-50149


reasoning that all “[f]acial challenges are fundamentally at odds with Article
III.” Moody, 

 (Thomas, J., concurring in the judgment).
       Anyway, the majority is mistaken about what Patel said. For example,
in Zook, the punishment of an ICC-permit violation was “legitimately
authorized by other laws” (specifically, federal law). Does that mean the
Court was obligated to ignore all applications of California’s law? Of course
not. Patel said nothing to that effect. Indeed, on the majority’s view, facial
preemption challenges would often be rigged against the States. That is
because as we are trying to determine if a state statute is consistent with
federal law, the majority would have us ignore all applications that are
authorized by federal law. In other words, the majority demands that we
ignore many constitutional applications when only one is enough to save the
statute. That cannot be correct.
       What Patel actually said is that we must consider the universe of
S.B. 4’s applications to people it will affect and ignore the applications to
people it will not affect. See 576 U.S. at 418–19. So let’s do that. Imagine an
alien is subject to a final order of removal. This alien is a violent terrorist and
convicted felon who entered outside a port of entry 10 times. He was released
from a jail in a sanctuary city that does not honor ICE detainers. So federal
officials want to detain and arrest him. To obtain help in that effort, they
share information with Texas with the hope that both sovereigns can
cooperate in apprehending the man. While everyone is looking for the alien,
he is pulled over for a minor traffic violation by Texas State Troopers. Instead
of releasing him with a ticket, can State Troopers instead detain him under
S.B. 4? Can they transport him to a port of entry? Can they rely on state law
to get the man from the side of the road to federal custody? Of course they
can. That offends no part of federal law. It requires reliance on the state
statute, so the state statute is not “irrelevant” as Patel and Casey understood
the laws in those cases to be. Patel, 

 (quoting Casey, 

                                  No. 24-50149


at 894). And it is obviously an application of S.B. 4’s arrest provisions that is
not crosswise with federal law.
       Now let’s tweak the hypo. Suppose this same terrorist, whose home
country is Mexico, was first arrested and prosecuted by federal officials.
Suppose further that he was ordered removed from the country. But for some
reason, the man is not in federal custody, though federal officials are looking
for him in order to execute the removal order. Now suppose Texas officials
apprehend and arrest him under S.B. 4. A local district attorney quickly
prosecutes the man, and the state court enters a return order. Immediately
thereafter, assume that state officials execute the return order as the majority
fears—by removing him at the border into Mexico. How is that meaningfully
different from the first hypo? The majority cannot say because they are
functionally the same. Neither conflicts with federal law.
                                       *
       In sum, the majority searches for a conflict between S.B. 4 and the
INA. Not only is that the opposite of how we ought to approach implied
conflict preemption questions. It is also a deeply misguided endeavor, as
there is no conflict between federal law and every possible application of any
of S.B. 4’s provisions.
                                      VI
       Finally, the other preliminary-injunction factors. It is well settled that
“a preliminary injunction does not follow as a matter of course from a
plaintiff’s showing of a likelihood of success on the merits.” Benisek v.
Lamone, 

 (2018) (per curiam). The plaintiff “must make a
clear showing that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public interest.”




                                      174
                                       No. 24-50149


Starbucks Corp. v. McKinney, 

 (2024) (emphasis added)
(quotation omitted).
        Here, I (A) show that the plaintiffs have failed to establish an
irreparable injury. Then, I (B) explain that they have also failed to prove that
the balance of the equities and the public interest tilt in their favor.
                                             A
                                              1
        Plaintiffs come nowhere close to establishing an irreparable injury.
Plaintiffs offer only vague and ill-defined theories of harm. But “generalized
claim[s] of harm” are no basis for granting a preliminary injunction. Del.
State Sportsmen’s Ass’n v. Del. Dep’t of Safety & Homeland Sec., 

 (3d Cir. 2024).
        Consider plaintiffs’ theory that enforcement of S.B. 4 would deprive
them of “their ability to represent many asylum applicants.” Las Americas
Br. at 50. 20 Even if that were true—and it is not 21—that generalized claim of

        _____________________
        20
            El Paso County offers its own theories of irreparable injury. But those theories
mirror its theories of standing. Since non-existent monetary costs are not a sufficient injury
for Article III purposes, it follows a fortiori that they are not an irreparable injury for
equitable purposes. See also infra, at 175–76.
        21
            Even if S.B. 4 is enforced vigorously, the plaintiff organizations should have
plenty of asylum applicants to represent. “More than 800,000” people “applied for
asylum” in 2022, for instance. Eileen Sullivan, Asylum in America, by the Numbers, N.Y.
Times (Nov. 21, 2023), https://perma.cc/PSP8-9PTZ. Why should we presume the
plaintiffs will have an insufficient number of clients in the federal system? In any event,
Texas avers it will continue to permit “‘non-profit legal service organizations’ to enter
State facilities ‘to contact confined and incarcerated aliens and provide their services.’”
Reply Br. for Appellants at 22 (quoting ROA.311). “And Texas will not prevent access to
federal proceedings—including immigration proceedings.” 

 (citing ROA.311). So we
have no idea how many fewer aliens, if any, the organizations would counsel because of
Director Martin’s enforcement of S.B. 4.




                                             175
                                   No. 24-50149


harm falls far short of the “clear showing” required to establish irreparable
injury and to induce a court to grant the “extraordinary and drastic remedy”
of a preliminary injunction. Mazurek v. Armstrong, 

 (1997).
It does not even suffice to establish an ordinary injury for purposes of Article
III standing. Concern over one’s own ability to represent asylum seekers is at
best “a setback to” an “abstract social interest[.]” All. for Hippocratic Med.,

. But the Supreme Court has said such injuries are insufficient
for purposes of Article III standing. But if an injury is insufficiently traditional
to even count as a “Case[]” in “Equity,” how could it be sufficiently
traditional for the chancellor to intervene? U.S. Const. art. III, § 1; see also
TransUnion, 

; Grupo, 527 U.S. at 318–19. It could not.
                                         2
       So why does the majority think plaintiffs will suffer an irreparable
injury? It appears to be because they have standing in a public-law case. The
majority argues Las Americas will suffer irreparable injury for the reasons
“considered above in subpart II(A).” Ante, at 90. That is, according to the
majority, Las Americas is irreparably injured because it will voluntarily spend
money to serve clients who are impacted by S.B. 4. And because of state
sovereign immunity, the plaintiffs cannot recoup their voluntary expenses
from Director Martin later. 

 at 90 & n.438.
       It is true that plaintiffs could not sue Director Martin—but state
sovereign immunity has nothing to do with it. The reason plaintiffs cannot
recoup their costs from Director Martin is that he is not regulating them, does
not care a wit about them, and could not control their voluntary expenditures
if he wanted to. Plaintiffs seeking to recoup their organizational costs from
Director Martin would be like me seeking to recoup my frequent flyer miles
from Starbucks: The defendant in either case would quite reasonably be




                                        176
                                   No. 24-50149


befuddled by the out-of-left-field claim that is grounded in neither law nor
logic.
         In any event, it is quite wrong to say all voluntary expenditures
constitute irreparable injury in public-law cases. On the majority’s logic, a
preliminary injunction against the Government would no longer be “an
extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def.
Council, Inc., 

 (2008). Rather, according to the majority, all a
plaintiff needs to do to satisfy irreparable injury is allege an Article III injury
under the most expansive theory of standing available. Then if there is any
reason whatsoever that even the slightest cognizable injury under Article III
cannot be redressed by a different action, as will often be true in public-law
cases, the plaintiff establishes irreparable injury—and for purposes of a
preliminary injunction at that. In short, whenever one sues the Government,
standing = irreparable injury. Gone is the Supreme Court’s insistence that “a
federal judge sitting as chancellor is not mechanically obligated to grant an
injunction.” Weinberger v. Romero-Barcelo, 

 (1982). Instead,
as the majority would have it, we should “churn” out preliminary injunctions
“as if on a convey[o]r belt.” Samuel L. Bray, The Purpose of the Preliminary
Injunction, 

, 810 (2025).
         Moreover, even if one understood Las Americas to say that it would
be forced—involuntarily—to spend money to comply with S.B. 4, there is
still no irreparable injury here. Of course, this is an absurd hypothetical and
misconstruction of S.B. 4, which forces Las Americas to do precisely nothing.
But in any event, “the Supreme Court has specifically rejected the idea that
routine compliance costs count as irreparable injury.” Id. at 856. So in
Petroleum Exploration v. Public Service Commission of Kentucky, 

(1938), the Supreme Court rejected a regulated entity’s claim that it would
suffer “irreparable injury because it would have to spend $25,000 (in 1930s
dollars) in response to a state commission’s order.” Bray, supra, at 856.



                                       177
                                       No. 24-50149


Instead, the Supreme Court explained that the mere necessity of spending
money to comply with government regulation “is not the sort of irreparable
injury against which equity protects.” Petroleum Expl., 304 U.S. at 220–21;
see also FTC v. Standard Oil Co. of Cal., 

 (1980) (rejecting a
claim of irreparable injury by an oil company stemming from the FTC filing
a complaint against it because the “expense and annoyance” the company
would suffer in litigation were “part of the social burden of living under
government” (quotation omitted)). So contra the majority, some expenses,
even if “substantial and unrecoupable” will “not constitute irreparable
injury.” Renegotiation Bd. v. Bannercraft Clothing Co., 

 (1974). 22
                                              *
        At bottom, plaintiffs’ theory of irreparable injury boils down to this:
We do not like that aliens could be removed. But courts have no business
enjoining state laws because political opponents dislike them. And it is
especially inappropriate here. The Supreme Court has rejected the idea that
removal automatically constitutes irreparable injury even to the removed alien.
Nken v. Holder, 

 (2009). It follows a fortiori that removal
does not automatically constitute irreparable injury to some third-party
organization simply because that organization finds immigration restrictions
distasteful.


        _____________________
        22
           Some of our precedents need not be read to conflict with Supreme Court
precedent on this front. In Wages & White Lion Investments, LLC v. FDA, 

 (5th
Cir. 2021), for example, we explained that a business had irreparable injury for
irrecoverable compliance costs that would “threaten[] the very existence of its business.” 

 (quotation omitted) (emphasis added). To the extent we also said that even $1 in
compliance costs categorically satisfies irreparable injury when not recoverable, that was
only because the defendant had “forfeited” any “argument contesting irreparable harm.”

 To the extent other precedents speak more broadly, they of course cannot override
binding Supreme Court precedent.




                                             178
                                       No. 24-50149


                                            B
        Next, the balance of the equities and public interest also cut in Texas’s
favor. 23 That alone would justify denying a preliminary injunction. See
Winter, 555 U.S. at 23–24 (denying a preliminary injunction against the
Government even assuming plaintiffs established likelihood of success and
irreparable injury); see also Starbucks, 

.
        I (1) explain the interests that weigh in favor of permitting enforce-
ment of S.B. 4. Then, I (2) weigh those against the interests that counsel
against enforcement of S.B. 4.
                                             1
        On one side of the ledger, Texas’s interests strike at the very heart of
its sovereignty. “Any time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of
irreparable injury.” Maryland v. King, 

 (2012) (Roberts,
C.J., in chambers) (quotation omitted); see also Abbott v. Perez, 

,
602 n.17 (2018) (adopting this position). But Texas’s interests go far beyond
that. This injunction does not block Texas from enforcing any old statute. It
blocks Texas from vindicating its “paramount interest in protecting . . . its
territorial integrity.” United States v. Flores-Montano, 

(2004); cf. Ohio v. EPA, 

, 291 (2024) (recognizing States’
weighty “sovereign interests in regulating their own industries and
citizens”). The inherent right of a sovereign to “direct and regulate at its
pleasure every thing that passes in” its territory has been recognized since
the Founding. Emer de Vattel, The Law of Nations § 204 (1797).
Texas retains that right subject only to “limitations expressed in the
        _____________________
        23
           Generally, “when the Government is the opposing party,” the balance of
equities and the public interest “merge.” Nken, 

. So I analyze them together.




                                            179
                                       No. 24-50149


Constitution or constitutionally imposed by Congress.” Arizona, 

 (Scalia, J., concurring in part and dissenting in part). So if wrongfully
enjoined—as we must presume when considering the balance of the equities
at the preliminary-injunction stage—Texas will suffer an injury striking at the
very core of its sovereignty.
         Moreover, if Texas is unable to enforce S.B. 4, both the State and its
citizens will suffer concretely. As I noted in Part I, the crisis at our southern
border has led to an influx of drugs and crime, and it has raised public-health
concerns. I need not repeat the dangers this has imposed upon the people of
Texas.
         The public interest favors Texas for another reason. “There is always
a public interest in prompt execution” of the laws. Nken, 

.
Enforcement of Texas’s law vindicates that interest. “The continued
presence of an” illegal alien “permits and prolongs a continuing violation of
United States law.” 

 (quotation omitted). By helping to remove these
people in accordance with federal law, Texas would “bring to an end”
thousands upon thousands of “ongoing violation[s] of United States law.”
Reno v. Am.-Arab Anti-Discrimination Comm., 

 (1999). Thus,
“the public interest demands effective measures to prevent the illegal entry
of aliens at the Mexican border,” the very thing Texas seeks to do here.
United States v. Brignoni-Ponce, 

 (1975). 24


         _____________________
         24
           At bare minimum, the public interest favors narrowing the injunction. As Nken
explained, “[t]he interest in prompt removal may be heightened by the circumstances as
well—if, for example, the alien is particularly dangerous, or has substantially prolonged his
stay by abusing the processes provided to him.” 556 U.S. at 436. Since many of the illegal
aliens Texas would enforce its laws against will be “particularly dangerous” or have
“abus[ed] the processes provided” to “substantially prolong[]” their stay, the public
interest favors prompt enforcement at least as to them.




                                            180
                                  No. 24-50149


                                       2
       So what is on the other side of the ledger? Not much. The majority
points to two interests. Both are insubstantial at best and baseless at worst.
And I see no other interests that favor enjoining S.B. 4’s enforcement.
                                       a
       First, the majority argues “[t]here is a high risk that enforcement of
S. B. 4 would cause international friction” with “Mexico.” Ante, at 91. What
is the basis for this “high risk”? It was an argument made by the Biden
Administration back when it was involved in this appeal. And the Biden
Administration said that Mexico had complained about S.B. 4.
       Obviously, the views of the Executive Branch as to foreign affairs are
entitled to great, if not conclusive, weight by the courts. See Holder v.
Humanitarian Law Project, 

, 33–34 (2010) (explaining that in
matters involving “sensitive and weighty interests of national security and
foreign affairs,” courts must defer to the “evaluation of the facts by the
Executive”). But today, to put it mildly, the Executive Branch has changed
course on immigration and on this suit. Today, the Executive Branch has
given us every reason to think it wants Texas to enforce S.B. 4. The Executive
Branch dismissed its suit after the court had already issued a preliminary
injunction against enforcement of S.B. 4 and this court had denied Texas’s
stay application. See supra, at 105 n.1. And as if the Executive Branch needed
to be any clearer, it has affirmatively invited Texas’s help in controlling the
southern border. See supra, at 155 n.16. So the very deference invoked by the
majority is self-defeating: It counsels against a preliminary injunction.
       The majority’s invocation of Crosby changes nothing. As the majority
notes, Crosby said only that “repeated representations by the Executive
Branch supported by formal diplomatic protests and concrete disputes”
demonstrated a risk of interference with federal foreign policy. 

                                  No. 24-50149


386 (emphasis added). But deference to the Executive Branch counsels
against finding interference with federal foreign policy for the reasons I just
explained. Moreover, in Crosby, the “EU and Japan” had “lodg[ed] formal
complaints against the United States in the World Trade Organization.” 

. Here, by contrast, there are zero “concrete disputes.” Mexico’s
Secretaría de Relaciones Exteriores under its prior President issued a press
release complaining that Texas’s law will “foster[] hostile environments . . .
against migrant communities” in Texas. Press Release, Secretaría de
Relaciones Exteriores (Nov. 15, 2023), https://perma.cc/RP7H-JXZR. At
the risk of stating the obvious, that press release has not “embroil[ed] the
National Government” in formal “international dispute proceedings.”
Crosby, 

. Nor does Mexico’s filing of an amicus brief in this
case change anything—especially when Mexico’s main complaint turns only
on the removal provisions. See Br. of Amicus Curiae the Government of the
United Mexican States at 11–12. And the United States’ decision to drop its
case against Texas means it is no longer here to support the majority’s
unfounded fears about international affairs.
                                        b
       Second, the majority claims that “[t]he enforcement of S. B. 4 also
risks taking the United States out of compliance with its treaty obligations . . .
[u]nder the” Convention Against Torture (“CAT”). Ante, at 92. That is
wrong.
       Texas plans to comply fully with CAT. See Texas 2024, 

 (Oldham, J., dissenting). Texas has represented, for instance, that under
S.B. 4 “[a]liens held in custody or serving a sentence under SB 4” remain
eligible “for any federal immigration relief,” including under the
“Convention Against Torture.” ROA.311.




                                       182
                                   No. 24-50149


       But, the majority protests, CAT forbids the removal of an individual
“where there are substantial grounds for believing that he would be in danger
of being subjected to torture.” Ante, at 92. So, the majority says, some subset
of aliens who have a “meritorious CAT claim” that “has not yet been
adjudicated may still be refouled under S. B. 4 in violation of the CAT.” 

       That is far from obvious. As discussed above, Texas represents it will
simply turn convicted aliens over to federal officials. And it has long “been
the settled practice of the Court, in contexts no less significant, fully to accept
representations such as these as parameters for decision.” DeFunis, 

. Anyway, even if S.B. 4’s return provisions operate as the majority
fears, there is no reason to think many, if any, aliens would be removed to any
country where their rights under CAT would be violated.
       But suppose the majority were completely right and some substantial
number of aliens would be removed to a country where their rights under
CAT would be violated. It still could not justify the district court’s facial
injunction against enforcement of S.B. 4. It is well settled that “a federal
court may not issue an equitable remedy ‘more burdensome to the defendant
than necessary to [redress]’ the plaintiff’s injuries.” Poe, 144 S. Ct. at 923
(Gorsuch, J., concurring in the grant of a stay) (quoting Califano v. Yamasaki,

 (1979)); see also Gill v. Whitford, 

 (2018)
(“[A] ‘remedy must . . . be limited to the inadequacy that produced the injury
in fact that the plaintiff has established.’” (quoting Lewis v. Casey, 

 (1996)). But as I have already explained, S.B. 4’s arrest provisions
could not possibly threaten our treaty obligations because their operation is
purely domestic. Texas 2024, 

 (Oldham, J., dissenting). It is
only the return provisions that could lead to hypothetical violations of CAT.
And even so, all the court would need to do is enjoin DPS from enforcing the
return orders in such a way that would prevent any alien who might have a




                                       183
                                   No. 24-50149


meritorious CAT claim from being able to raise it. So the broader relief the
court blesses is flagrantly overbroad.
                                         c
       Nor is there anything else that might tilt the equities in plaintiffs’
favor. No one claims that anyone involved in passage or enforcement of
S.B. 4 has engaged in the sort of bad-faith conduct that is the traditional
concern of equity—such as opportunism, or what Justice Story called “crafty
evasions.” 1     Joseph      Story,          Commentaries      on    Equity
Jurisprudence, as Administered in England and America
§ 17 (Bos., Hilliard, Gray & Co. 1836); see also Henry E. Smith, Equity as
Meta-Law, 

, 1082–84 (2021). And such a claim would
have to overcome the “presumption” of “good faith.” Alexander v. S.C.
State Conf. of the NAACP, 

, 6 (2024).
       In sum, given the weighty interests that augur in favor of permitting
enforcement of S.B. 4 and the miniscule interests weighing against such
enforcement, I cannot see how the majority can claim that plaintiffs have
made “a clear showing . . . that the balance of equities tips in [their] favor,
and that an injunction is in the public interest.” Starbucks, 

.
So a preliminary injunction is unwarranted.
                               *         *        *
       Today is a sad day for Texas and for our court. It is a sad day for the
millions of Americans who are concerned about illegal immigration and who
voiced those concerns at ballot boxes across Texas and the Nation—only to
have their voices muted by federal judges. And it is a sad day for the rule of
law. If we really believe in neutral principles—like standing, the cause of
action requirement, the preemption standard, and the preliminary-injunction
factors—those principles must be, well, neutral.




                                         184
                                  No. 24-50149


       Perhaps the new rules announced today will be neutral. Perhaps in
future Fifth Circuit cases, all lawyers, political interest groups, and political
subdivisions will have universal standing to challenge any law they dislike.
Perhaps all state laws will be preempted when they merely coincide with
federal law. And perhaps all plaintiffs will win sweeping, facial, pre-
enforcement injunctions whenever they satisfy Article III’s minimum
requirements for standing.
       But I fear that is not true. I fear today’s rules are for today’s case. And
that the normal rules governing justiciability, preliminary injunctions, and
preemption will come back tomorrow. I suppose we should all hope for a
return to normalcy, even if it comes too late for this case. But for now, and
for today’s myriad errors, I respectfully dissent.




                                       185