Not Even Close to Constitutional

Why a judge blocked the most controversial provisions of Texas’ anti–sanctuary city bill.

Sanctuary Cities-Texas
LUPE (La Union del Pueblo Entero) members rope off a cardboard sign indicating SB 4 has been temporarily blocked by a judge on Thursday in San Juan, Texas.

Delcia Lopez/The Monitor via AP

On Wednesday night, U.S. District Judge Orlando Garcia blocked major portions of SB 4, Texas’ assault on “sanctuary cities.” The Republican-backed measure requires local police to enforce federal immigration law, cooperate with federal immigration officials, and detain individuals suspected of being undocumented. It also gags local officials from speaking out against SB 4 or federal immigration enforcement; those who do are subject to massive fines and removal from office. Garcia found that major provisions of the law likely violate the United States Constitution’s guarantees of free speech, due process, and freedom from unreasonable searches or seizures. He also ruled that federal law pre-empts SB 4’s most controversial components.

Garcia’s decision is a significant blow to the Republican-led effort to coerce local governments into joining President Donald Trump’s crackdown on undocumented immigrants. On Thursday, I spoke with Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project who represented some of the plaintiffs challenging SB 4, to explore the potential influence of the ruling. Our conversation has been edited and condensed.

Mark Joseph Stern: SB 4’s overarching goal is to compel all Texas law enforcement officers to enforce federal immigration law. Why is that illegal?

Lee Gelernt: SB 4 says that local entities, which are very broadly defined, cannot engage in a practice or adopt a policy that would “materially limit” federal immigration enforcement. We sued on behalf of a mayor and sheriff who were concerned that this provision meant they’d lose local control over their police force—and turn their police into adjuncts to the Trump administration’s immigration enforcement. Complying with SB 4 would drain resources and cause the community to lose trust in the police: Every time community members reported a crime, they’d be concerned that an officer would ask them about their immigration status. We already saw anxiety about that build during the recent hurricane.

Judge Garcia blocked this requirement because Congress has already laid out the procedure through which local law enforcement can become authorized to enforce immigration law. That procedure imposes numerous requirements on local law enforcement. SB 4 circumvents those requirements, which means it’s pre-empted by federal law.

The Trump administration argued that SB 4 did not conflict with federal law. Does that matter?

No. SB 4 conflicts with congressional statutes. It’s Congress that decides what the states can do, and Congress did not allow for a law like SB 4. The Trump administration cannot dictate the meaning of federal law.

One of SB 4’s most startling provisions effectively bars public officials from opposing the measure: No officer or employee of a local government may “endorse” a policy limiting the enforcement of federal immigration law. Each violation incurs a fine of $25,500, and violators may be removed from office. The court blocked this provision on First Amendment grounds. My biggest question is what in the world was Texas thinking?

In court, Texas didn’t really make a full-throated defense of that provision. The state’s lawyers tried to argue that the provision doesn’t actually prohibit speech. But of course it does, even though the statute doesn’t define “endorse.”

The court wrote that “endorse” could mean “a recommendation, suggestion, comment, or other expression in support of” limiting local immigration enforcement.

Right. The provision seems to bar local officials and employees from criticizing SB 4 even when they’re not acting in their public capacity. Police officers and mayors aren’t even sure if they can testify against SB 4 in court. This prohibition is so cryptic—but the penalties are extreme.

The court also blocked a provision that punishes any official who “materially limit[s]” law enforcement from “assisting or cooperating” with federal immigration officers. Anyone who violates this requirement is subject to both criminal and civil penalties. Why is that illegal?

Due process requires fair notice of what a law forbids or requires, and Judge Garcia ruled that this provision is simply too vague to comport with that rule. For instance, imagine a sheriff gets a call from a federal immigration officer who says, “We need your help.” Does the sheriff have to allow his officers to go? If he doesn’t, he could face tens of thousands of dollars in fines as well as jail time and removal from office. In court, Texas argued that the attorney general would never move against a sheriff in a case like that. But a lawyer’s promises aren’t good enough for people on the ground who have to make these decisions in real time.

SB 4 compels local law enforcement to honor “ICE detainers”—federal requests to detain possibly undocumented individuals for up to 48 hours after they should be released so that Immigration and Customs Enforcement can retrieve them. ICE detainers are contentious because they seem to infringe upon the Fourth Amendment’s bar on unreasonable detention.

We believe it is unconstitutional to detain an individual without probable cause of an actual crime. Living in the United States without documentation is not a crime but a civil violation, which raises concerns about the lawfulness of ICE detainers.

But even assuming that the Fourth Amendment allows states to detain individuals based on probable cause of a civil violation, SB 4 is illegal. Local jail officials must be able to make their own assessments of detainees to determine whether there is probable cause that they’ve committed a civil immigration violation. And SB 4 allows officials almost no discretion. It forces them to honor ICE detainers and detain an individual even if they think that detention is unlawful. SB 4 puts jail officials in a bind: Either honor the ICE detainer and act unconstitutionally, or don’t honor the detainer and subject yourself to jail time and removal from office.

That’s why the court wrote that SB 4 would “inevitably lead to Fourth Amendment violations”: Officials are forced to honor groundless ICE detainers, leading to unlawful detentions.


What impact do you think this decision will have outside of Texas?

Obviously, other states are constantly thinking about passing anti-immigration measures, and they’re looking to see what happens with SB 4.

But the issues with SB 4 really go beyond immigration. One principal legal issue is the relationship between a state and its political subdivisions, like towns and counties. That’s playing out beyond immigration. You see conservative state legislatures trying to pre-empt local governments from protecting a vulnerable group: a racial minority, LGBT people, low-income workers, and so on. A lot of people are watching SB 4 very closely for reasons unrelated to immigration as more conservative states try to pre-empt local officials’ ability to protect their own vulnerable communities.