by James Barragán, Dallas Morning News
Before Texas’ sanctuary cities ban even made it to Gov. Greg Abbott’s desk, it had a not-so-flattering nickname: the “show me your papers” law, a reference to a similar Arizona measure that sparked national debate and a U.S. Supreme Court ruling.
The ban’s opponents used the moniker in hopes of conjuring flashbacks to the business boycotts, negative publicity and court decisions striking down major provisions of Arizona’s 2010 law. Proponents of the law, including Abbott, rejected the comparison and called it fear-mongering.
As Texas begins what is likely to be a years-long legal saga over the sanctuary cities ban, Arizona is still recovering from its six-year court battle. Both opponents and supporters of Texas’ law say there are important differences between it and the 2010 law. And while they don’t agree on much when it comes to sanctuary cities, both sides argue there are lessons Texas can draw from Arizona’s experience.
“It’s a good political talking point for Democrats, but they’re two very different pieces of legislation,” said Mark Jones, a political science professor at Rice University.
What’s in the laws
Senate Bill 1070, as Arizona’s “show me your papers” law was first called, was crafted when the state’s lawmakers were trying to crack down on illegal immigration. The law helped elevate Maricopa County Sheriff Joe Arpaio, an immigration hard-liner, to national prominence.
Perhaps the most well-known provision in the law required police officers to ask people they detained about their immigration status if they had reasonable suspicion they were in the country illegally. But it also had other tough-on-immigration provisions. One made it a crime for unauthorized immigrants to work or seek work in the state. Another made it a state crime for unauthorized immigrants to fail to register with the federal government upon entering the country. A third measure allowed police to arrest people without warrants if they had probable cause to believe that the person had committed crimes that would lead to their deportation.
Opponents challenged all four of the provisions in the U.S. Supreme Court. Only the “show me your papers” provision was upheld. The other provisions, the court ruled, undermined the federal government’s enforcement of immigration law.
Arizona lawmakers said passing the law would help decrease crime in the state, which they tied to unauthorized immigrants. The Arizona Department of Public Safety reported that crime did drop 9 percent in the four years after the implementation of the law, but experts point out that the state’s crime rate had been dropping since 2002. There was no way to tie the continued drop SB 1070, experts said.
Unlike Arizona’s law, Texas’ affects the behavior of local governments and elected officials rather than individual officers. It prevents cities, counties and universities from prohibiting their law enforcement officers from asking about immigration status during a stop. It also compels local jails to honor requests from federal immigration authorities to hold immigrants in their cells until their legal status can be determined.
Officials who violate the ban could be removed from office or, in the case of law enforcement officials, be thrown in jail. Jurisdictions that violate the ban could be fined up to $25,000 per day.
Abbott: Texas law is better
Texas lawmakers point out that unlike Arizona’s law, which required officers to ask about immigration status, the Texas law only allows it — a legal discretion they already have.
The Supreme Court already sanctioned that provision when it ruled in the Arizona case, they say. In his first interview following the signing of the sanctuary cities ban, Abbott told the conservative website Breitbart that the “so-called controversial part of this law” — the “papers please” provision — had “been ruled on by the U.S. Supreme Court and upheld.”
That was true, but the court also left the door open for further legal challenges if the provision led to racial profiling.
Late last year, Arizona effectively dismantled the controversial law by agreeing to limit enforcement of the “papers, please” provision in a settlement agreement. Law enforcement officers could ask about immigration status during a stop, but could not do so without a valid reason.
That agreement, immigrants rights groups said, addressed many of their concerns about the law and put police agencies on notice that they could be punished for racially profiling. But supporters say that, though weakened, the provision remains in effect, proving its legality.
Abbott declined to comment on the Arizona settlement’s potential impact in Texas’ the sanctuary cities ban suit.
Defenders of Texas’ law point out that it specifically prohibits discrimination and protects immigrants who are victims or witnesses of crimes.
The law’s supporters say the new administration in Washington may also benefit Texas’ sanctuary city law.
In previous rulings, the Supreme Court has said that immigration enforcement is the duty of the federal government, not states.
With a Trump administration that is hawkish on immigration enforcement, however, supporters think those rulings could flip in their favor. On Friday, the Justice Department sided with Texas in a lawsuit the state’s biggest cities have filed challenging the new sanctuary cities law. The feds argued that the law allows Texas to work with the federal government.
“It may actually backfire on people who are claiming victory on that point because now the federal pre-emption works the other way,” said Ira Mehlman, media director for the Federation for American Immigration Reform, which advocates for strict enforcement of immigration laws. Mehlman said by addressing legal issues with the Arizona law and assessing the Trump administration’s stance on immigration, Texas is laying out a road map for other states that want to pass similar laws.
“If the Trump administration says that these sanctuary policies and other local actions are violating [their] authority over immigration policies, they can hold them accountable to the same standards,” he said.
Opponents: Texas law is worse
Opponents of the law, including immigrants’ rights advocates and officials in most of the state’s largest cities, say that in trying to avoid the constitutional traps of the Arizona law, Texas created entirely new legal quagmires.
“They ran into a whole bunch of other flaws that are worse and less avoidable,” said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is representing plaintiffs in the suit.
For example, Republican lawmakers tried to address one concern in the Arizona law by allowing officers to ask about immigration status rather than requiring them to do so. Saenz said that could encourage rogue officers to zealously enforce immigration laws, which could lead to civil rights abuse lawsuits, and prevent supervisors from reeling them in.
“They’re going to decide on their own whether to engage in laws in which they’re untrained, and that’s equivalent to licensing vigilantes with a badge,” Saenz said.
Texas’ law is even more legally problematic than Arizona’s, critics say, because it punishes jurisdictions and local officials who try to limit immigration enforcement as part of their of their local public safety efforts. Beyond the threats of massive fines, removal from office and imprisonment, Texas’ law also ties the hands of local officials in other unconstitutional ways, opponents say.
The law, they argue, tampers with local voters’ rights to elect lawmakers by threatening to remove them from office for carrying out local policies.
“People elect their sheriffs, people elect their mayors, and as a governor you threaten to remove them from office?” said Mary Moreno, communications director for the Texas Organizing Project, a plaintiff in the lawsuit. “That’s clearly a dangerous territory that we’re entering.”
It also limits officials’ free speech, opponents argue. Because the law is unclear about what constitutes “discouraging” immigration enforcement, any statement could be used as a reason to remove them from office.
“To the extent to which SB 4 … tries to control political speech and the expressions of officials about what they think is right in their communities — that’s just unheard of,” said Denise Gilman, an immigration law professor at the University of Texas.
One thing does tie the two laws together, opponents say.
“SB 4 was obviously passed with a lot of the same rhetoric,” said Andre Segura, legal director for the American Civil Liberties Union in Texas. “This is, to us, the next generation of these anti-immigrant laws.”
‘Years of legal fights’
Like the plaintiffs in Arizona’s case, the opponents of the Texas law are willing and expecting to take their case case to the Supreme Court. That could take years — Arizona’s took two to reach the Supreme Court and six to reach a settlement.
Texas is already involved in two six-year-long legal battles over a controversial voter identification law and the drawing of electoral maps in 2011. Opponents of the sanctuary city ban hope their resolution will come sooner, but they could be in for a similarly long wait.
“I’m afraid that … what you’re going to see is years and years of legal fights with expenditures to the state,” said Nicholas Espiritu, a staff attorney at the National Immigration Law Center, which fought the Arizona law, “not only in monetary resources but in terms of public perception about what the state of Texas is.”