The dispute is the latest clash between the Biden administration and Texas over immigration enforcement on the U.S.-Mexico border.
A federal judge blocked the law after the Biden administration sued, but the New Orleans-based 5th U.S. Circuit Court of Appeals said in a brief order it could go into effect March 10 if the Supreme Court declines to intervene.
In Monday’s emergency filing, Solicitor General Elizabeth Prelogar said the Texas law is “flatly inconsistent” with Supreme Court precedent dating back 100 years.
“Those decisions recognize that the authority to admit and remove noncitizens is a core responsibility of the national government, and that where Congress has enacted a law addressing those issues, state law is preempted,” she wrote.
The appeals court, Prelogar added, did not explain its reasoning for allowing the law to go into effect.
She dismissed Texas’ argument that its law can be defended on the basis that the state is effectively battling an invasion at the border under the State War Clause of the Constitution.
“A surge of unauthorized immigration plainly is not an invasion within the meaning of the State War Clause,” Prelogar wrote.
The city of El Paso and two immigrant rights groups, Las Americas Immigrant Advocacy Center and American Gateways, have also challenged the law and had filed their own emergency request at the Supreme Court.