Analysis Law and Policy

ACLU: New Texas Law Forces Local Officials to Violate Constitutional Rights or Risk Steep Fines

Imani Gandy

Prior to SB 4, local officials could decide for themselves how much resources to expend helping federal officials crack down on immigration, or whether to help them at all. SB 4 turns that system on its head.

Texas’ new anti-“sanctuary cities” law, SB 4, will soon face a roadblock in court: The American Civil Liberties Union (ACLU) filed a motion this week for a preliminary injunction asking a federal judge to block the state from enforcing it based on multiple constitutional infirmities.

The plaintiffs represented by the ACLU—the State of Texas League of United Latin American Citizens and its members; the City of El Cenizo and its mayor, Raul Reyes; and Maverick County and some of its elected officials, including its sheriff and constable—allege that SB 4 fundamentally upsets the scheme designed by U.S. Congress to encourage cooperation between federal immigration officials and local law enforcement by leaving it to the local officials’ discretion to decide whether and how much assistance to offer.

Prior to SB 4, local officials could decide for themselves how much resources to expend helping federal officials crack down on immigration, or whether to help them at all.

SB 4, which opponents call anti-immigration and anti-law enforcement, turns that system on its head.

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It amounts to a federal take-over of local law enforcement by prohibiting local municipal bodies—sheriffs, municipal police departments, district attorneys, city attorneys, school campus police departments, and the like—from adopting policies that “materially limit” a corrections officer, commissioned peace officer, booking clerk, magistrate, district attorney, criminal district attorney, or other prosecuting attorney from checking a person’s immigration status and reporting that information to federal immigration officials. In other words, it effectively gives local officials free reign to racially profile and harass people of color about their immigration status—which, plaintiffs note, would violate the Equal Protection Clause of the 14th Amendment.

The law also requires local officials to provide “enforcement assistance” and local jail access to federal enforcement officials, and to detain people on federal orders even if law enforcement has no probable cause to detain them. The detainer request doesn’t even have to be formal: A simple phone call from an ICE agent can, plaintiffs say, compel a state official to detain a person without probable cause, and in some cases for more than 48 hours.

Courts have uniformly held, based on the Fourth Amendment, that probable cause is required for immigration detainers. Furthermore, the U.S. Supreme Court held in County of Riverside v. McLaughlin that a suspect arrested without a warrant cannot be held for longer than 48 hours without probable cause.

Officials may, thanks to SB 4, find themselves in a bind: Run afoul of a person’s constitutional rights, or risk the steep penalties that the law imposes for failure to assist the feds in enforcing immigration law, including fines, jail time, or removal from office.

In addition, plaintiffs allege that officers’ own constitutional rights are in danger. The law violates the First Amendment, they say, by banning speech that endorses limitations on immigration enforcement: Local officials cannot speak ill of federal immigration efforts .

Plaintiffs also argue that the law is unconstitutionally vague, an issue of due process. For example, the provisions of the law that prohibit municipal bodies from enacting policies that “materially limit” local officials from checking immigration status do not define what “materially limit” means. Nor does the statute define what “enforcement assistance” means, although it requires local bodies to provide it to federal immigration authorities.

For penalties this steep, plaintiffs argue, a person must be given a reasonable opportunity to know what conduct is prohibited. But SB 4 leaves too many open questions.

Ultimately, SB 4 is a harsh law that imposes harsh penalties if local officials don’t aid federal immigration authorities in turning Texas into a “papers please” state based on statutory language so vague that lawyers at the ACLU say it is virtually impossible to follow.

“SB 4,” they write, “is written in such vague and ambiguous terms that local officials will inevitably be left to guess whether any particular action or policy violates the law.”

“[Texas] Governor [Greg] Abbott and his allies in the legislature enacted the harshest anti-immigration law in the country, ignoring the concerned voices of many Texans who stood in solidarity with our immigrant communities,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas in a statement.

“Not only will SB4 lead to wholesale racial profiling, it is so vaguely written that local officials and law enforcement agencies are essentially left to guess whether their policies and practices would violate the law. We’re proud to lead the charge on this important next step in the legal battle to keep this calamitous legislation from taking effect on September 1,” Saldivar added.

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