By César Cuauhtémoc García Hernández and Christopher N. Lasch
The virulent tone of immigration rhetoric that propelled Donald Trump to the presidency has come to Colorado. A Republican state legislator proposes to bar cities or local governmental units from limiting their cooperation with ICE. And then he goes where even President Trump hasn’t dared: criminalizing the very act of voting in favor of limiting cooperation with ICE. The proposal, House Bill 17-1134, titled the “Colorado Politician Accountability Act,” is a constitutional train wreck. If our students submitted this for a course, we would be ashamed of our work as teachers and alarmed at the author’s disregard for basic principles of our constitutional democracy.
Criminalizing legislative activity
H.B. 17-1134 starts by offering a proposal that has become mundane among Republican legislators. Like his Republican counterparts in Iowa, Texas, the U.S. House of Representatives, and the White House, Representative Dave Williams hopes to limit local control of limited governmental resources. Rather than allow cities, counties, school districts, universities, or any other governmental entity to determine how best to channel their employees’ attention, H.B. 17-1134 punishes efforts to create what the bill calls “sanctuary jurisdictions.” The definition of “sanctuary” is so prohibitively expansive as to be incapable of repetition here.
The bill also threatens any elected official “who votes in favor of” or “fails to take steps to try to change” a sanctuary law with conviction of a felony and imprisonment for two to four years. Proposed § 13-21-1302(5). Such officials can also be held liable under state tort law and subjected to compensatory damages. Proposed § 13-21-1304(1)-(3). Even sheriffs are put in the crosshairs. If they “enforce a policy that allows the jurisdiction to operate as a sanctuary jurisdiction,” they too are promised prison time. Proposed § 13-21-1302(5).
This is breathtaking. Punishing legislators for voting in a particular way is anathema to our system of governance. Democracy in the United States has always been far from perfect, but attempts to subvert it are frightening. H.B. 17-1134’s criminalization of legislative voting is nothing short of an attack on open democratic deliberation and the independence of legislative activity. Indeed, in Bogan v. Scott-Harris, Justice Thomas, writing for a unanimous Supreme Court, explained, “The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo–American law. This privilege ‘has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries’ and was ‘taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation.’” 523 U.S. 44, 48-49 (1998). This is no less true of state or local officials than it is of Members of Congress. Sable v. Myers, 563 F.3d 1120, 1123 (10th Cir. 2009).
There is good reason the United States legal tradition has been to immunize legislators for their legislative activity. It’s not for their sake. It’s for our sake. We immunize legislators because voting as directed by one’s conscience and political pressures serves “the public good.” Tenney v. Brandhove, 341 U.S. 367, 377 (1951). As the U.S. Court of Appeals for the Tenth Circuit wrote, “Legislative immunity enables officials to serve the public without fear of personal liability. Not only may the risk of liability deter an official from proper action, but the litigation itself ‘creates a distraction and forces legislators to divert their time, energy, and attention from their legislative tasks to defend the litigation.’” Sable, 563 F.3d at 1123-24.
It might be nice if legislators would valiantly face the threat of imprisonment to carry out their legislative duties. This certainly would fit a romanticized version of democracy. But romance is best left to Hollywood. In legislative halls, we ask for a good-faith discharge of legislators’ oath of office. We don’t ask for superhuman valor to vote, in effect, for one’s own imprisonment. As the towering jurist Justice Felix Frankfurter wrote in a case of enormous relevance to H.B. 17-1134, “One must not expect uncommon courage even in legislators.” Tenney, 341 U.S. at 377.
For this reason, the United States Constitution as well as most state constitutions, including that of Colorado, protects legislators from liability for carrying out their legislative duties. Commonly referred to as speech-or-debate clauses, in Colorado this constitutional provision, Art. 5, § 16, is “construed liberally” to provide maximum insulation from threats to legislative deliberations. Colorado Common Cause v. Bledsoe, 810 P.2d 201, 209 (Colo. 1991) (en banc). “Nothing could involve the legislative function more directly” than voting on legislation. Lucchesi v. State, 807 P.2d 1185, 1189 (Colo. Ct. App. 1990). When they are doing that, neither the judicial nor the executive branches are allowed to interfere with legislators. Colorado Common Cause, 810 P.2d at 209. Anything less than what Justice Thomas described as “absolute immunity,” Bogan, 523 U.S. at 49, risks turning judicial proceedings into scenes in which “[i]n times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.” Tenney, 341 U.S. at 377. That would tarnish the judiciary and collide with separation-of-powers principles that prevent one branch of government from stopping another from performing its function in our democracy.
Instead, the proper corrective for legislators who do not vote as any of us would like is in the voting booth. See id. Even the most vile of historical affairs have received protection. For example, members of the California Senate Fact-Finding Committee on Un-American Activities, a legislative committee that, like its more famous Congressional committee led by Representative Joseph McCarthy, hunted political dissidents, were entitled to immunity. See id.
Treading on separation-of-powers
H.B. 17-1134’s collision with fundamental legal tenets does not end with the legislative immunity doctrine. The proposal’s severability clause purports to strip Colorado courts of any power to review the act. Proposed § 5(2). This provision threatens the separation-of-powers principles upon which the legal systems of the fifty states, including Colorado, and the nation rest. The judiciary is unquestionably tasked with the duty of reviewing legislative pronouncements. In Marbury v. Madison, Chief Justice John Marshall famously cemented the role of the courts in our democracy when he announced, “It is emphatically the province and duty of the judicial department to say what the law is.” 5 U.S. 137, 177 (1803).
In Colorado, Article 3 of the state Constitution provides for three coequal branches of government. In turn, Article 6, § 1 explicitly states that “[th]e judicial power of the state shall be vested in a supreme court.” As far back as 1894, the Colorado Supreme Court favorably quoted Michigan Supreme Court Justice Thomas Cooley’s comment, “the judiciary is the final authority in the construction of the constitution and the laws, and its construction should be received and followed by the other departments.” People v. Martin, 36 P. 543, 572 (Colo. 1894). Presented with a jurisdiction-stripping amendment to the state Constitution, the Colorado Supreme Court in 1921 held that the people of the state are “powerless to…strip their courts of the power to pass upon such a [constitutional] violation.” People v. Max, 198 P. 150, 155 (Colo. 1921). If courts can be stripped of all power to review legislative enactments, the Court went on in an unusually poetic fashion, “then law has become a phantom and justice a dream, and constitutional guaranties of the sacredness of life, liberty and property ‘A tale / Told by an idiot, full of sound and fury, / Signifying nothing.’” Id.
Ignoring the Supremacy Clause
This bill claims to be all about upholding the sanctity of federal law, and even cites the U.S. Supreme Court’s decision in Arizona v. United States, 132 S. Ct. 2492 (2012), for the proposition that “the federal government has supremacy and preemptive authority to legislate on immigration matters.” The Arizona decision of course famously struck down that state’s attempt to involve local law enforcement in immigration enforcement—the Court held that Senate Bill 1070, Arizona’s law authorizing local cops to make immigration arrests, ran contrary to the “system Congress created” for immigration enforcement.
Representative Williams ironically, while citing Arizona, falls into the same trap with H.B. 17-1134. The bill would prohibit “sanctuary” policies that prevent local officers from “enforc[ing] federal immigration law.” Proposed § 13-21-1302(6)(a). Yet the Supreme Court clearly held in Arizona that federal law limits the ability of state officials to enforce immigration law. One example noted by the Court is that civil immigration warrants must be executed by federal officers with “training in the enforcement of immigration laws.” 132 S.Ct. at 2506 (citing 8 CFR §§ 241.2(b) and 287.5(e)(3)).
In sum, “[f]ederal law specifies limited circumstances in which state officers may perform the functions of an immigration officer.” 132 S.Ct. at 2506. Because Arizona’s law gave state officials more authority than federal law permitted, the Court struck it down as unconstitutional. H.B. 17-1134 similarly transgresses this basic principle.
Violating the Fourth Amendment
Troubling as is H.B. 17-1134’s clash with the legislative immunity, separation-of-powers, and federal supremacy doctrines, those are not its only flaws. The bill also tramples on the Fourth Amendment.
Part of the expansive definition of “sanctuary jurisdiction” proposed by H.B. 17-1134 targets Colorado sheriffs, who since September 2014 have unanimously refused to honor immigration “detainers”—requests by ICE that local law enforcement agencies prolong the detention of a prisoner otherwise entitled to release, long enough for ICE to determine whether they want to pick up the person as a suspected immigration violator.
H.B. 17-1134 includes in its definition of “sanctuary” policies against “cooperating and complying with federal immigration officials” or against “continuing to detain an individual, regardless of the individual’s ability to be released on bail, who has been identified as an illegal alien while in custody for violating any law of this state.” Proposed § 13-21-1302(6)(a), (e). These provisions put the sheriffs’ existing detainer policies in the crosshairs of Representative Williams’s proposed legislation.
So why don’t Colorado sheriffs currently honor detainers?
Detainers were routinely honored in Colorado until 2014, when three groundbreaking federal decisions (from district courts in Rhode Island and Oregon, and from the Third Circuit Court of Appeals) changed the legal landscape dramatically. These cases established (1) that sheriffs may choose to decline the requests for prolonged detention made through immigration detainers—and can be held liable for such detention where it is unlawful; and (2) that such prolonged detention amounts to a new arrest, and must be supported by legal authority and abide the constraints imposed by the Fourth Amendment.
The Fourth Amendment limits government’s ability to deprive any “person” of our liberty. If a government official such as a police officer wants to seize any one of us, the officer must have some basis for suspecting that the person to be seized has engaged in illegal activity. Depending on the duration of the seizure, officers must have either “reasonable suspicion” or “probable cause” that the seized person has engaged in illegal activity. For an arrest, the courts are unambiguous: probable cause is required.
Courts have held that immigration detainers do not provide the requisite probable cause. And a detainer accompanied by an immigration “administrative warrant” is just as problematic. The Fourth Amendment requires the involvement of a neutral judicial officer in determining whether probable cause exists for an arrest. ICE does not follow this sacrosanct constitutional principle when it comes to civil immigration “warrants,” which are issued by immigration enforcement agents, not judges. Because “immigration warrants” do not involve a neutral judicial officer, “the arrest must therefore be treated as warrantless.” El Badrawi v. Dep’t of Homeland Sec., 579 F. Supp. 2d 249, 276 (D. Conn. 2008).
Any law enforcement agency that violates the Fourth Amendment can be held financially liable to the person whose right to be free from unreasonable seizure was violated. That, and the decisions described above, is why every Colorado county sheriff moved to limit compliance with ICE detainers by September 2014. Similar developments were occurring nationally, and by November 2014 the Obama administration, in the face of an “increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment,” directed ICE to replace requests for prolonged detention with requests for notification of a prisoner’s upcoming release date.
Recent federal decisions continue to expose the legal infirmities with immigration detainers. As the County Sheriffs of Colorado recently put it most simply: “we cannot hold persons in jail at the request of a local police officer or a federal agent.” H.B. 17-1134 does nothing to remedy the legal problems with immigration detainers. Nor does it explain how cities and counties are expected to pay for violating the Fourth Amendment routinely.
H.B. 17-1134 is scheduled for hearing before the Colorado House Committee on State, Veterans, and Military Affairs on February 22.
César Cuauhtémoc García Hernández is an assistant professor of law at the University of Denver Sturm College of Law and publisher of crimmigration.com. Christopher N. Lasch is an associate professor of law at the University of Denver Sturm College of Law and co-director of the school’s Criminal Defense Clinic.