Scott Forsyth, BridgeTower Media Newswires
Local officials like to complain about state “mandates”: services, such as Medicaid and indigent legal defense, which the state requires local governments to furnish with little or no financial assistance.
The officials conveniently forget their governments exist by virtue of an act of the legislature. If the legislature continues the existence on condition the governments render a particular service, so be it.
The situation is a bit different, as always, in the Lone Star State. There state leaders are getting into the habit of barring localities from engaging in basic acts of governance.
A good example is SB4, a law adopted last spring which tried to make local governments greater participants in the enforcement of federal immigration laws. I say tried because, two days before the law’s effective date, a federal district court temporarily blocked the enforcement of most of SB4. City of El Cenzio v. Texas, 5:17-cv-00404 (W.D. Texas Aug. 30, 2017).
The plaintiffs were a bunch of municipalities, such as Travis County and its seat, Austin. They had adopted policies protecting aliens, documented and undocumented, within their borders. They could be called “sanctuary cities.”
The Republican governor castigated the plaintiffs, particularly Travis County. He promised to “hammer” the county and put its Democratic sheriff “behind bars” for “breaking her oath of office.”
SB4 gave the governor the means to do so. An official who breached its terms could be heavily fined, removed from office or jailed.
And what were those terms? “Local entities” cannot adopt rules and policies, written or unwritten, which prevent their employees from engaging in certain behaviors. The behaviors include inquiring about the immigrant status of a person, sharing immigration status information with other government agencies, assisting a federal immigration officer, and honoring requests from ICE to continue to detain persons of interest to ICE.
In one provision directly aimed at “sanctuary” jurisdictions and their supporters, a local entity and its employees may not “adopt, enforce, or endorse a policy” that “prohibits or materially limits the enforcement of immigration laws.”
The plaintiffs challenged SB4 on several constitutional grounds and showed a likelihood of prevailing on most.
Federal law already regulates extensively the manner by which local governments share immigration status information and assist immigration officers. SB4’s provisions on the subject did not take into account these regulations and therefore were preempted.
The sanctuary city provision violated the First Amendment. Public officials have a right to speak out on “matters of public concern.” Pickering v. Board of Ed., 391 U.S. 563 (1968).
Local policy on the enforcement of immigration laws is a matter of legitimate public concern.
Under SB4, endorsing any policy in favor of less enforcement of immigration laws will subject a public official to sanction. This is restricting expression because of its content, “presumptively invalid.” The state’s efforts to rebut the presumption were “meager.”
Furthermore, penalizing persons who favor less enforcement while not penalizing persons who seek stricter enforcement is viewpoint discrimination, an “egregious form of content discrimination,” per the Supreme Court. Rosenberger v. University of Virginia, 515 U.S. 819 (1995).
The court held the phrase “materially limits” to be void for vagueness. The phrase failed to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibited. Equally as bad, it authorized arbitrary and discriminatory enforcement.
The state argued the phrase actually narrowed the reach of the provision. There had to be a “logical connection between the (local) action and the effect on enforcement of immigration law” for the policy at issue to be tainted. Day-to-day decisions about the allocation of scare police resources would fall outside the bar.
To the contrary, said the court. The definition of policy is so broad to include these day-to-day decisions. “Materially limits” does not give local policymakers any guidance on what they can and cannot do.
The court cited the comments of the governor to show how the law could be targeted at politically disfavored localities.
ICE requests are known as detainers. Case law has established that the police cannot hold a person past his release date unless he is the subject of a warrant or the police have probable cause to believe he has committed a crime.
Being an alien present in the country without proper documentation is not a crime but may be a reason for the issuance of a detainer. A jurisdiction that holds a person, citizen or alien, pursuant to a detainer, absent a warrant or probable cause, violates the Fourth Amendment rights of the detainee. See, e.g., Morales v. Chadbourne, 793 F.3d 208 (First Cir. 2015) (citizen).
SB4 prevented localities to engage in any probable cause analysis. Therefore, the provision in the law on detainers violated the Fourth Amendment.
The court did not strike down the provision on immigration status inquiries at this stage of the proceeding. On its face, the provision only allows inquiries during otherwise lawful stops and detentions. In 2012 the Supreme Court held this type of inquiry to be constitutional. Arizona v. United States, 567 U.S. 387 (2012).
Texas has promised to appeal the preliminary injunction. It should just abandon the law.
The next time your local official grumbles about Albany mandating some service, and in the process allegedly increasing your property taxes, you may want to remind him he should be thankful he is not governing in Texas. The mandates there are harsh and invite the wrath of a governor who wants to jail those who disagree with him—especially on immigration policy.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or scott@forsythlawfirm.com.
