En Banc Fifth Circuit Vacates Preliminary Injunction Against Texas Senate Bill 4, Holding Plaintiffs Lack Standing

The decision

On April 24, 2026, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, vacated a preliminary injunction that had barred enforcement of Texas Senate Bill 4, a 2023 law creating state offenses of illegal entry and illegal reentry and authorizing state judges to order noncitizens to return to the country from which they entered. The majority held that the plaintiffs—two nonprofit legal-services organizations and El Paso County—had not suffered a cognizable Article III injury and therefore lacked standing. Ten of the court’s seventeen judges joined the majority opinion; seven dissented.

The decision rests on standing alone. The majority wrote that it vacated the injunction “without addressing the merits of the pre-emption claim,” and added in a footnote: “Because we hold that there is no standing, it is unnecessary to explain or opine on preemption.”

Background

According to the opinion, S.B. 4 adds two offenses to the Texas Penal Code that the court describes as tracking the federal crimes of unlawful entry and reentry under 8 U.S.C. §§ 1325(a) and 1326(a). Section 51.02 criminalizes entry into Texas from a foreign nation other than at a lawful port of entry and includes affirmative defenses tied to federal grants of lawful presence, asylum and certain DACA approvals. Section 51.03 criminalizes entering, attempting to enter or being found in the state after having been denied admission, excluded, deported or removed. A third provision, Article 5B.002 of the Code of Criminal Procedure, permits a judge to dismiss a charge and enter an order requiring the person to return to the foreign nation from which he entered, if the person agrees. The opinion states that the parties dispute how return orders would be enforced and that, because the challenge is pre-enforcement, no state court has interpreted the provision.

Before S.B. 4 took effect, Las Americas Immigrant Advocacy Center, American Gateways and El Paso County sued in the Western District of Texas, seeking a declaration that the law is unlawful in its entirety and a facial injunction against its enforcement on the ground that it is preempted by the Immigration and Nationality Act. The nonprofits alleged that enforcement would frustrate their missions, require them to restructure services and divert resources. The county alleged erosion of community trust in local government and costs such as jail space and additional officers. The United States filed a separate suit, which was consolidated, but voluntarily dismissed its complaint without prejudice in March 2025.

The district court granted a preliminary injunction, concluding that S.B. 4 is likely preempted and crediting the plaintiffs’ standing theories. A divided administrative panel denied a stay pending appeal. Before the merits panel ruled, the Supreme Court decided FDA v. Alliance for Hippocratic Medicine (2024). In July 2025, a divided panel affirmed the injunction, relying on Havens Realty Corp. v. Coleman (1982), over a dissent by Judge Oldham. The court then granted rehearing en banc, vacating the panel opinion.

The court’s reasoning

The majority opinion, by Judge Jerry E. Smith, opened with the Supreme Court’s 2026 decision in Bost v. Illinois State Board of Elections, which it cited for the propositions that plaintiffs must have a personal stake in a case and cannot manufacture standing by voluntarily incurring costs. It also recited statistics on border crossings during 2021–2023 drawn from a state declaration in the record.

Unregulated plaintiffs

The court stated: “S.B. 4 is enforceable only against aliens illegally present in Texas, not against advocacy organizations or Texas counties.” Because the plaintiffs challenged the regulation of someone else, the court said, standing is harder to establish under Alliance and Lujan v. Defenders of Wildlife.

The nonprofit plaintiffs

The court addressed two theories. First, it held that the nonprofits’ claims of frustrated missions, restructured services and diverted resources were the theories Alliance repudiated. Quoting Alliance, it said an organization cannot “spend its way into standing,” and that ideological opposition to a law or the intensity of an organization’s interest does not create standing.

Second, the court rejected the argument that S.B. 4 injures the nonprofits’ “core activities” of providing legal representation. It said standing “turns on the interplay between Havens and Alliance.” The nonprofits argued that Alliance reinforces Havens; the State argued that Alliance, without overruling Havens, substantially narrowed it. The court concluded: “In urging a narrow view of Havens in the wake of Alliance, the State has the better of the debate.” It credited Judge Oldham’s panel dissent, which distinguished Havens on the ground that the defendant there told falsehoods to the plaintiff, whereas S.B. 4 says nothing about Las Americas or its services. The court also relied on its 1994 decision in Association for Retarded Citizens of Dallas, which rejected standing based on a legal-advocacy organization’s mandate to represent individuals, and warned that otherwise any legal-advocacy organization could repackage a generalized grievance as an injury to its core business whenever a new law takes effect.

The court then stated its rule: “A legal-services organization cannot have Article III standing merely because a new law or regulation requires it to understand the legal change, to adjust resources in response, or to increase the degree or scope of legal representation for its current or prospective clients who may be adversely affected.”

El Paso County

The court held that “eroding the public trust” is a non-cognizable reputational harm lacking a “close historical or common law analogue” under TransUnion LLC v. Ramirez, and that the alleged harm is subjective. It wrote: “If El Paso County has standing based on this alleged reputational harm, any political subdivision could sue to challenge any state law, which flatly is not the case.” A footnote cited Donelon v. Louisiana Division of Administrative Law for what it described as the “general rule” that political subdivisions lack standing to sue a state except in limited circumstances recognized in the circuit. As to fiscal costs, the court said the pre-enforcement posture made any assumption about enforcement speculative—including whether the State would reimburse the county, where convicted persons would be detained, and whether fines would be imposed instead of imprisonment. It cited Judge Oldham’s panel dissent for additional reasons.

What the court did not decide

The majority did not decide whether S.B. 4 is preempted. It held the United States’ appeal moot in light of the voluntary dismissal and did not address the United States’ standing. It did not resolve other justiciability questions discussed in the separate opinions, including the political question doctrine and Ex parte Young.

Separate opinions

Judge James C. Ho concurred, agreeing that the plaintiffs lack standing. He also endorsed Texas’s argument that S.B. 4 is a lawful exercise of the war power in response to an invasion, writing: “In sum, exercising the war power to defend against an invasion is a quintessential judgment for chief executives, not federal judges.” He responded to the dissents’ reliance on Torres v. Texas Department of Public Safety and argued that detention is an incident of waging war. The opinion lists no other judges as joining.

Judge Andrew S. Oldham, joined by six judges, concurred, writing that the plaintiffs “have not come close to establishing standing.” His opinion is limited to whether Texas Penal Code § 51.02 is conflict preempted. He argued that facial challenges must satisfy the no-set-of-circumstances test of United States v. Salerno, offered a hypothetical arrest of border crossers on a ranch that he said would be consistent with federal law, and distinguished Arizona v. United States as resting on features absent from S.B. 4. He concluded that such applications “doom plaintiffs’ facial pre-enforcement challenge—even assuming the plaintiffs have standing, which they plainly do not.” In a footnote not joined by Chief Judge Elrod, he questioned whether Ex parte Young applies.

Judge Priscilla Richman wrote the principal dissent. She would hold that Las Americas has standing under Havens as reaffirmed in Alliance, that the case is justiciable, and that the law is field and conflict preempted: “I would reach the merits and affirm the district court’s preliminary injunction against the enforcement of the state laws that permit Texas to arrest and remove illegal immigrants.” She addressed sovereign immunity, the equitable cause of action, Salerno, the State War Clause, the remaining injunction factors, and the scope of relief under Trump v. CASA, which she would leave to the district court.

Judge James E. Graves Jr., dissenting on standing only, wrote that “The majority trivializes plaintiffs’ injury,” arguing that Las Americas operates counseling and referral services whose impairment confers standing under Havens and Alliance.

Judge Stephen A. Higginson, joining Judge Richman in full, wrote separately that the alleged Supremacy Clause violation cannot be separated from the injury: “The conflict between federal law and state law is at the core of the harm itself.” He also faulted the majority for not addressing the district court’s jurisdictional findings of fact.

Status

The court vacated the preliminary injunction. The majority stated that courts “must enforce Article III’s limits and dismiss cases for want of jurisdiction in the absence of standing,” but did not itself direct further orders. The principal dissent noted that the El Paso District Attorney, who dismissed his appeal, “remains subject to the injunction.” The underlying preemption claims were not resolved.

The decision was widely reported. The Texas Tribune reported that it was not clear whether S.B. 4 would take effect immediately, and that Las Americas’s legal services director criticized the court for deciding the case on standing rather than the merits. According to the Houston Chronicle, the Governor’s office said it was reviewing the decision and the Attorney General welcomed the ruling.