- Philip Jankowski American-Statesman Staff
In a court case that could have national reverberations, judges at the 5th U.S. Circuit Court of Appeals on Tuesday probed the extent of the reach of Senate Bill 4, the so-called sanctuary cities ban, as well as its effect on elected officials’ free speech during an appeal hearing on the controversial Texas law.
There is no timeline on when the panel of three judges will rule on the applicability of a previous ruling from a federal judge that blocked much of the law days before its implementation. The appeals court undid portions of that injunction in September.
On one side of the hearing were lawyers representing the numerous Texas cities and counties, including Austin and Travis County, that sued the state to invalidate SB 4; on the other, Texas Attorney General Ken Paxton and U.S. attorneys argued in favor of the law. Paxton did not argue before the court.
The law empowers local police officers to conduct investigations into a person’s immigration status during routine detentions like traffic stops, requires local law enforcement to cooperate with federal immigration agents, and makes federal detention requests placed on jail inmates suspected of illegal immigration mandatory. SB 4 also created stiff fines and criminal charges for government officials who choose to ignore it.
“We can’t allow sanctuary cities to harbor these criminals and we cannot allow city officials to ignore laws just because they don’t agree with them,” Paxton said after the hearing, reading from a prepared statement on the steps of the John Minor Wisdom U.S. Court of Appeals Building in New Orleans.
Lawyers refused to speculate what the final outcome of Tuesday’s hearing will be. But based on the large amount of parties that have filed briefs on the case, including multiple states and the Mexican government, it is clear that the case could have far-reaching consequences.
“This is a national issue,” American Civil Liberties Union lawyer Lee Gelernt said after the hearing. “There are other states following what’s happening in this litigation, and I think that we are likely to see a reaction to whatever happens in this litigation in other states.”
The questions of Judges Edith Jones, Jerry Smith and Edward Prado to attorneys provided clues as to what aspects of the law they are closely examining, including numerous questions from Jones about a provision of the law that states local police cannot “materially limit” cooperation with Immigration and Customs Enforcement agents.
Gelernt told the court the law would essentially empower ICE to give orders to local police to conduct raids or sweeping interrogations. He said SB 4 would make it possible, for example, for ICE to ask police to question participants at soccer games.
Jones, however, questioned that reading of the law.
“I think your hypothetical is totally off-base,” she said. “I really disagree with your interpretation.”
Judges also seemed very interested in an element of the law that requires elected and government officials to “endorse” SB 4. Texas Solicitor General Scott Keller told the court the provision would not apply to political speech.
But Jones questioned further, noting that one of the state’s briefs filed in a lower court referenced comments made by Travis County Judge Sarah Eckhardt against the bill as evidence suggesting that the county would not enforce the law.
Keller repeatedly said that endorsing the law only applies to official government action in sanctioning and ratifying SB 4. Some of the judges were skeptical of his narrow interpretation.
“Wouldn’t (the endorsement provision) have a chilling effect on elected officials; that they would be run out of office for what they said on the TV news?” Prado asked.
Mexican American Legal Defense and Educational Fund attorney Nina Perales told the court that the speech requirements of SB 4 wouldn’t just apply to law enforcement and elected leaders, but could lead to stiff punishments for rank-and-file police officers, jailers and even community college professors who speak against the law.
Jones showed some doubt in that assertion, remarking multiple times that she did not believe the Texas attorney general’s office would “swoop in” to punish a “persecuted jailer.” Jones also said that Paxton’s office could issue binding opinions that might clean up some of SB 4’s gray areas.
After the hearing, Austin City Council Member Greg Casar, whose North Austin district has the largest immigrant population in the city, said the state was moving the goal posts on what legislators outwardly said during the law’s passage and what prosecutors are telling the court.
“The state of Texas continues to try to argue its way out of the racist and unconstitutional law they themselves put together,” Casar said. “In the state House, they talk about going after undocumented people, and in the courthouse they talk about how this is some sort of reasonable law this isn’t meant to take any of our resources away when clearly it is.”
The mayor of the small border town of El Cenizo, the first city to sue the state after Gov. Greg Abbott signed it into law, said that their fight was far from over.
“We do know this case will go all the way to the Supreme Court, and we are prepared for that fight,” Mayor Raul L. Reyes said.