Now that Senate Bill 4 is on its way to becoming law, opponents are looking to the courts for relief – and a 2012 U.S. Supreme Court case is giving them hope.
The high court struck down parts of a controversial 2010 immigration law in Arizona on the grounds that Congress, not the states, has the power to create immigration law. Experts say that argument could come into play with Texas’ SB 4, which requires local jails to comply with immigration detention requests that federal officials have said are voluntary.
“My opinion is the state is regulating in the immigration field,” said Barbara Hines, senior fellow at the immigration reform group the Emerson Collective. “What the state of Texas is doing is they are creating their own detainer program. That is pre-empted. Immigration is a federal area.”
Among other things, SB 4 would create civil and criminal penalties for officials who disregard requests by U.S. Immigration and Customs Enforcement to extend the detention of jail inmates suspected of being in the country illegally. Those detention requests, or detainers, help facilitate possible deportation proceedings.
State Rep. Rafael Anchia, D-Dallas, predicted that the bill will follow the same course as Arizona’s SB 1070, better known as the “papers please” law because it required law enforcement officers in Arizona to demand the documentation of anyone they believed was in the country illegally.
Texas’ SB 4 doesn’t require officers to ask, but it prohibits sheriffs or police chiefs from keeping their officers from doing so.
“It allows local law enforcement to ask anybody on the street for their immigration status,” said Anchia, who chairs the Democrat-dominated Mexican American Legislative Caucus, which is fighting the state in court over redistricting maps it says are racially discriminatory.
Senate Bill 4 author Sen. Charles Perry, R-Lubbock, however, said he has no fear that Texas’ measure would be overturned. The purpose of the bill, he said, was to ensure cooperation with federal immigration law enforcement, not to create new immigration regulation.
“All this bill says is: Apply the federal law. You don’t get the discretion” to not help ICE, he said. “If it’s unconstitutional, then the (federal) practices of today are unconstitutional.”
Opponents of the bill, he said, are grasping for hope with a court challenge. “I think they’re just emotional and passionate – and rightfully so,” he said.
Jessica M. Vaughan, director of policy studies the Center for Immigration Studies, which advocates for stricter immigration policy, said she believes any legal challenges to SB 4 will fail.
“This bill looks to me to be pretty rock solid,” Vaughan said. “I think the opponents will have an uphill battle in getting a definitive ruling that this is unconstitutional.”
Critics vow to fight
Critics have argued the bill would separate families, deport well-meaning immigrants and create a fear in immigrant communities that might undermine their safety.
They picked up a legal argument this week after a group of mayors, including Austin Mayor Steve Adler, met with U.S. Attorney General Jeff Sessions for clarity on the ramifications for so-called “sanctuary cities.”
Sessions confirmed Tuesday to the mayors that compliance with the federal immigration detention requests sent to local jails — the central requirement of SB 4 — isn’t mandated under federal law. Rather, the jails can choose whether to hold inmates longer at the request of ICE, Sessions said.
That the comments came from such a high-ranking Trump administration official deflated the notion often associated with SB 4: that local officials like Travis County Sheriff Sally Hernandez are breaking federal law by choosing to ignore some ICE detention requests.
It also raised questions over whether the state could step in and create an immigration law making the detainers mandatory.
“It is inevitable that you will see cities and counties across the state suing the state. The overreach is unprecedented,” Austin City Council Member Greg Casar said. “I don’t know who died and made Greg Abbott (into) Putin, but our cities are going to fight back.”
Legal arguments emerge
Hines said face SB 4 could face a serious challenge based on a precedent set when the Supreme Court struck down parts of Arizona’s law that focused on punishing those living in the U.S. illegally.
In addition to the “papers please” provision, Arizona’s SB 1070 made it illegal for immigrants living in the country illegally to have a job or seek employment. The law faced a huge amount of backlash, including protests across the nation. It also faced a court challenge from the Obama administration.
The Supreme Court eventually found the labor portion of the law unconstitutional, ruling that it pre-empted Congress’ broad powers to create immigration law. Even though Congress had never created such employment restrictions on people here illegally, the court stated that Congress’ lack of action showed a clear purpose.
The same logic in that portion in the ruling could be applied to SB 4, Hines said.
Marisa Bono, southwest regional council for the Mexican American Legal Defense and Education Fund, said other portions of SB 4 are vague and too broad. A provision that makes it illegal to adopt policies or ordinances discouraging cooperation with federal immigration officials could violate the First Amendment, she said.
“MALDEF has been and will continue to closely monitor the debate of SB 4,” Bono said. “And we will be prepared to stand in court with Texas immigrant communities if that becomes necessary.”
Beyond any questions of the constitutionality of SB 4, the ICE practice of detainers is facing legal challenges elsewhere, over arguments that holding inmates for ICE after local courts have approved their release violates the Fourth Amendment.
In October, an Illinois federal court found that nearly all ICE detainers are invalid, stating that an ICE field office in Chicago would need a warrant to detain a person suspected of illegal immigration at a local jail. That case is being appealed.
Other federal courts have had similar rulings and a Mexican citizen sued Bexar County last year in a claim that he was held for 75 days at the jail there on an ICE detainer despite having no criminal charges. He is seeking damages and asked the court to declare Bexar County’s policy of compliance with ICE detention requests and ICE detainers in general unconstitutional, according to court documents.