AUSTIN, Texas ― Texas Gov. Greg Abbott signed into law Sunday one of the harshest immigration laws to pass a state legislature since Arizona’s 2010 crackdown.
But opponents say the bill is headed straight to court.
The Mexican American Legal Defense and Educational Fund plans to file a lawsuit in the coming months that could block the bill’s implementation in September, its president, Thomas A. Saenz, told HuffPost.
“This bill is crazy,” Saenz said. “There are so many different legal problems with this, it’s almost like a law school exam intended to test your knowledge … I expect a judge will have problems with virtually every section of it.”
Senate Bill 4 bans so-called “sanctuary” policies that shield some undocumented immigrants from federal authorities by declining requests from Immigration and Customs Enforcement to hold them in local custody on the agency’s behalf. Under the law, no jurisdiction may refuse an ICE detainer, despite the fact that the Justice Department continues to view them as requests rather than mandatory.
“Elected officials and law enforcement agencies ― they don’t get to pick and choose which laws they will obey,” Abbott said in a Facebook Live video of the bill signing.
Jurisdictions that violate the law would be subject to fines and the loss of state grant money. Local officials face the possibility of getting tossed from elected office and spending up to a year in jail for refusing to comply with ICE detainers.
The new law also gives police the authority to question those they stop about their immigration status, drawing comparisons to Arizona’s 2010 immigration crackdown, which opponents dubbed the “show me your papers” law. The provision extends to police on university campuses, despite the fact that the state has another law on the books allowing undocumented immigrants to attend colleges at in-state tuition rates.
The Republican-dominated state legislature passed the law over the objections of immigrant rights groups, faith leaders and many of the state’s top law enforcement officials.
The bill offers fruitful ground for a legal challenge, critics say. Courts have ruled in the past that holding people in local jails who would otherwise go free on bond or because their charges were dropped violates the Fourth Amendment.
Critics say this law also looks too much like an attempt for Texas to draft its own immigration policies. The U.S. Constitution reserves that authority for the federal government, which pre-empts the states from creating or enforcing immigration laws on their own. Barbara Hines, who headed the immigration clinic at the University of Texas at Austin and still serves as a professor there, said there’s no federal law that criminalizes declining an ICE detainer.
“I think there clearly are pre-emption issues,” Hines told HuffPost. “Pre-emption would be a facial challenge, like in the Arizona bill, which means this would go straight to court before it gets implemented. Because what the state is doing is getting involved in immigration policy.”
Opponents argue that giving local officers the ability to inquire about immigration status would lead to racial profiling, which could also be challenged in court.
“We can only anticipate that vulnerable people will be subjected to profiling and other constitutional violations,” Terri Burke, executive director of the ACLU of Texas, said on a call with reporters. “By giving local police the green light to inquire about a person’s immigration status, we know from experience that people ― that is citizens and noncitizens alike ― will be held unlawfully for extended periods of time while their status is checked.”
Texas has built a track record for passing laws with discriminatory intent that won’t help it in court. This year alone, federal judges have ruled that the state legislature acted with intent to discriminate against Hispanics and other minorities in two separate cases ― when passing a 2011 law requiring voters to present a photo ID to cast a ballot, and when drawing the state’s congressional districts in the same year.
The only Texas jurisdiction that has a formal policy limiting detainers is Travis County, which includes the capital of Austin. Seeking to avoid challenges to the new law, Texas Attorney General Ken Paxton filed a lawsuit against Travis County and Austin elected officials that asks a federal court to declare the new law constitutional under the Fourth and 14th amendments and to agree that the bill does not pre-empt federal law. The lawsuit could force coming legal challenges to be consolidated into one case, according to the Texas Attorney General’s Office.
“SB4 is constitutional, lawful and a vital step in securing our borders,” Paxton said in a statement. “SB4 guarantees cooperation among federal, state and local law enforcement to protect Texans. Unfortunately, some municipalities and law enforcement agencies are unwilling to cooperate with the federal government and claim that SB4 is unconstitutional.”
Greg Casar, an Austin city councilman, told HuffPost last week that several jurisdictions beyond Travis are already planning legal challenges to the new sanctuary policies law.
“We won’t be coerced,” Casar told HuffPost during a sit-in at the governor’s offices that got him and more than 20 other protesters arrested for civil disobedience. “Even if [Gov. Abbott] threatens us with criminalization, even if he threatens to remove us from office, we can’t betray our communities.”
Elise Foley contributed reporting. This article has been updated with a statement from the Texas attorney general.