A showdown between Texas and local officials centers on the state's 'sanctuary' cities ban

By Jenny Jarvie

June 26, 2017 10:03 AM PT

Reporting from San Antonio, Texas — Hundreds of immigrant advocates gathered outside a federal courthouse here Monday as local officials from across Texas squared off for a legal showdown with the state and federal governments over the state’s new anti-“sanctuary city” law.

Mayors, council members and county judges from tiny border towns and big Texas cities were packed inside. One by one, their attorneys called for U.S. District Judge Orlando Garcia to temporarily halt implementation of Senate Bill 4, which aims to force local municipalities to help detain immigrants in the country illegally.

The law, signed by Republican Gov. Greg Abbott in May and set to take effect Sept. 1, allows local law enforcement to ask about the immigration status of anyone they legally detain or arrest, including people stopped for minor traffic violations.

It would also require local police to comply with federal immigration requests to detain people suspected of being in the country illegally. Police chiefs and county sheriffs who refuse could face harsh fines or spend up to a year in jail.

“Local police officers are going to enforce to the hilt, because why take a chance?” Lee Gelernt, an attorney for the American Civil Liberties Union representing the small border city of El Cenizo, told the judge.

He suggested that the law could encourage police officers to conduct traffic stops in areas where there are day laborers and lead to a “situation that incentivizes people to enforce immigration law to the maximum.”

But state and federal attorneys downplayed the effect of the new law, arguing that it did not go as far as Arizona’s contentious Senate Bill 1070 — known as the “show me your papers” law — that the U.S. Supreme Court partially invalidated in 2012.

“It is a moderate law that fits hand in glove with federal immigration policies,” said Darren McCarty, an attorney for Texas. “It is not a ‘show your papers’ law. It does not mandate that officers requests immigration papers.… There is no fair reading of Senate Bill 4 that would allow Texas law enforcement officers to do anything beyond inquiring on immigration status.”

In passing the bill, legislators simply intended to ensure a unified application of immigration law rather than a “patchwork” of different immigration policies, McCarty argued.

Five Texas cities, as well as several counties and sheriffs, challenged the law’s constitutionality. Originally filed by El Cenizo, the lawsuit grew to include bigger cities such as San Antonio, Austin, Dallas and Houston.

They say that the law is overly vague and an “extraordinary intrusion” on local officials’ ability to govern as they see fit. Their attorneys argued that it preempts federal law and violates the 4th Amendment right to protection against unreasonable searches and seizures and the 14th Amendment right to equal protection.

They also say a requirement in the law that no local official “endorse” a policy that limits the enforcement of immigration laws violates the 1st Amendment right to free speech.

“This is the first test, under the Trump administration, of a state attack on sanctuary cities,” Ilya Somin, a constitutional law professor at George Mason University in Alexandria, Va., said in a telephone interview. “If the Texas law ends up being upheld, that might encourage other states to introduce similar legislation.”

Erez Reuveni, an attorney for the U.S. Justice Department, said that although the federal government does not require local governments to comply with federal detention requests, it welcomed the new law.

Nothing prevents a state from directing law enforcement officers to cooperate with the federal government, he said.

Though the federal government can’t tell local officials to detain somebody, “the states absolutely can tell them to do so,” he said.

Opponents of the law argued that it threatens public safety by weakening trust between police and the community, deterring immigrants from reporting crimes and diverting busy law enforcement officers from their regular duties.

The state countered that it was ridiculous to think that a police officer would ignore a report of violent crime to conduct an immigration query instead.

“No police department would ever be prosecuted for leaving the scene of detention for a more pressing situation,” McCarty said.

The judge, an appointee of President Clinton, listened with a hand clutching his forehead and asked attorneys from both sides a barrage of questions about how the new law would be implemented.

Could local police officers conduct their own immigration raids? If an officer stopped a speeding driver, could he ask all passengers in the car about their immigration status? What would happen if an officer did not share the information that someone was in the country to federal immigration officials?

A local law enforcement officer who did not pass on information to Immigration and Customs Enforcement would not be in violation of the law, a state attorney said. The law, he argued, is focused on police chiefs and sheriffs who instruct rank-and-file officers not to ask people about their immigration status.

The daylong hearing ended without Garcia ruling on whether he will halt Texas from enforcing the law.

Sherine Thomas, an attorney for Travis County, told the court that with so little agreement over how to interpret the law, it only made sense to put it on hold.

“It’s very difficult for elected officials to know what they can and can’t do,” she said. “The way the [state] attorney general reads it isn’t enough solace.”

Jarvie is a special correspondent.

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UPDATES:

8:20 p.m.: This article was updated to include testimony from the hearing.

This article was originally posted at 9:05 a.m.