During the Joe Biden years, when the federal government refused to confront drug cartels taking advantage of the president's open borders policies, the state of Texas passed SB 4 to create its own immigration enforcement system, including arrests and removals.
In fact, Gov. Greg Abbott (R) invoked Section 10 of Article I of the U.S. Constitution, which provides that states "without the consent of Congress" may "engage in war" if they have been "actually invaded."
But whether SB 4 can fully operate depends on ongoing legal battles over federal authority. Courts have blocked it on and off, so aside from passing the law and building the enforcement framework, Texas has not been able to do much under SB 4 yet.
Last week, a year and a half into a new administration, the full U.S. Court of Appeals for the Fifth Circuit, sitting en banc, ruled that the pro-illegal alien plaintiffs lacked standing in the case and lifted the injunction against SB 4.
The Federation for American Immigration Reform (FAIR) filed a friend of the court brief urging that result.
"Here we are in 2026, a year and a half into the Trump administration, and [while] it may not be as relevant today as it was several years ago … it's still relevant because the policies change with each administration," notes Ira Mehlman, media director for FAIR. "This sets a precedent that states do have the authority to protect their interests if the federal government is not doing its job."
Mehlman says this is legitimate under the Tenth Amendment of the U.S. Constitution.
"Texas has a right to defend itself if it is being invaded, which it was," he adds, reiterating that this ruling sets a precedent for if and when we find ourselves back in a similar situation.
"States can act to protect the interests of their people," Mehlman says.
The appeals court did not touch the invasion argument, stressing the decision was made "without addressing the merits" of the case, but Judge James Ho argued that Texas has a right to defend itself, citing a book that posits Mexico and other countries have weaponized migrants against the United States.
"If our adversaries are going to weaponize mass migration to harm America as well as other countries, our elected officials are entitled to respond accordingly," he wrote. "In any event, these are political matters for which elected officials are held accountable by voters, not judges."
It was not clear if SB 4 would go into effect immediately.
