The spider web of legal questions that could ensnare Texas’s sanctuary cities ban

Texas lawmakers are literally insulting, threatening and shoving each other over the state’s new sanctuary cities ban. Seriously — lawmakers on the last day of the state’s regular legislative session looked more like a class of kindergartners in suits than grown men.

But watch the above video once, then know that the real fight over the ban, which Texas Gov. Greg Abbott (R) signed into law this month, will happen in the courts. The lawsuits are flying on both sides, and here are five legal questions that Texas’s sanctuary cities ban will have to navigate.

1) Can a state legally force a community to comply with federal deportation request?

At the heart of Texas’s ban, which is set to take effect Sept. 1, is a provision allowing local officials to be charged with a misdemeanor if they knowingly refuse to hand over immigrants that the federal government asks for.So although it’s about to be a crime under state law to refuse to hand over immigrants to federal officials, ignoring deportation requests are perfectly legal under federal law. (See question No. 4.)

This is why President Trump’s executive order banning sanctuary cities wasn’t really a ban on the policy. It was a threat to withhold federal funds from communities if they didn’t comply with deportation requests. (A federal judge recently said that method is unconstitutional, for reasons we get into here.)

Some Texas cities are arguing that the state can’t make illegal what the federal government makes legal. (That argument worked in Arizona a few years ago for a similar law.)

But George Mason University constitutional law professor Ilya Somin says there’s nothing in the federal Constitution that prevents states from coercing their municipalities.

2) Does this strip local police of their rights?
El Cenizo, a speck of a Texas border town, thinks this law amounts to a ban on its officers’ rights to do their job. The town of 3,300 has a regulation preventing local law enforcement from handing over some illegal immigrants to the federal government.Two days after Abbott signed the bill, El Cenizo sued the state, arguing that its sanctuary city policy keeps the town safe by allowing undocumented immigrants to feel comfortable reporting a crime.And El Paso County, which also sued the state, says it has a regulation from a previous lawsuit that its law enforcement can’t comply with federal immigration deportation requests.“We represent a sheriff, a mayor and a constable who are put in the situation where they could face jail time if they choose not to cooperate with immigration enforcement they find to be unconstitutional,” said ACLU Texas’s senior lawyer, Edgar Saldivar. The American Civil Liberties Union is counsel to El Cenizo. “It’s putting local law enforcement in a bind in Texas.”

3) Does this law target people because of their race?

Texas is not the only state with some kind of attempt to ban sanctuary cities. But it is one of the few states to add this to its law: a provision allowing police to question people’s immigration status whether they are arrested or detained (like at a traffic stop).

El Paso County’s lawsuit argues the sanctuary city ban would violate the 14th Amendment’s guarantee of equal protection because the ban would encourage racial profiling from police.

“[P]ersons in Texas, particularly Mexican-Americans, those of Hispanic descent, and immigrants and their families, will be caught in the crossfire,” the lawsuit reads.

Abbott, whose wife is Hispanic, said that’s much ado about nothing: “As a person whose family is made up of Hispanics, I want to make sure no one who is Hispanic gets detained inappropriately,” he told local reporters.

4) Are the federal government’s deportation requests even constitutional?

This 64-million-dollar-question is winding its way through federal courts, too.

Most recently, a U.S. citizen in Illinois sued the government for holding him in jail without probable cause other than a deportation request. An Illinois federal court ended up deciding last year that the federal government can’t make a local government hold someone longer than they otherwise would without a warrant. Holding people without a warrant violates that person’s constitutional right, specifically his or her right to avoid unreasonable search and seizure.

In other words, said the nonpartisan National Conference of State Legislatures, a federal government’s requests for deportation “are voluntary, not mandatory.”

5) Are cities such as Austin “publicly hostile” to cooperation with the federal government?

Texas is ready for all these lawsuits. Texas Attorney General Ken Paxton (R) actually pulled the first punch, filing a lawsuit in federal court the day after Abbott signed the bill that alleges almost all of Austin’s city officials are “publicly hostile to cooperation with federal immigration enforcement.” (Austin has become Ground Zero for the Texas sanctuary cities battle.)

Paxton’s lawsuit asks a federal court to preemptively declare the sanctuary cities bill constitutional by all the measures above.

“Texas possesses an independent sovereign responsibility to protect the health, welfare, and safety of its residents,” he said in a news release announcing the lawsuit.

But his lawsuit also serves another purpose: funneling all the legal challenges to one court.

Paxton filed the state’s lawsuit in the U.S. District Court for the Western District of Texas, which appeals to a federal court with nearly 2-to-1 Republican-appointed judges vs. Democratic-appointed judges.

All that’s to say: We don’t know whether Texas’s sanctuary cities ban is constitutional, but that question will ultimately be decided by a court with majority Republican-appointed judges.

Amber Phillips is a political writer  for  The Washington Post’s  The Fix.


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