As attention remains focused on Hurricane Harvey’s devastating impact on the Texas Gulf Coast, the state’s controversial immigration law was to go into effect on Friday. Late Wednesday, a San Antonio federal court put that schedule on hold for most of the law. Its “show-me-your-papers” provision, however, can go into limited effect.
Senate Bill 4 marks the pinnacle of state Republican elected officials to tie state and local governments to ICE’s immigration enforcement practices. The law authorizes police to ask about immigration status. It requires compliance with immigration detainers despite multiple judicial decisions concluding they are illegal. It punishes elected officials who endorse policies limiting cooperation with federal immigration agents. Flouting SB4’s harsh stance toward migrants subjects government entities, including schools and universities, to massive fines. Individuals can be criminally prosecuted. Elected officials can be removed from office.
Perhaps sensing that the state is treading on thin legal ground, Texas Attorney General Ken Paxton, one of the law’s leading supporters, asked a federal court to declare it constitutionally sound. The court declined to do so. It instead concluded that Paxton was asking for an “advisory opinion” which federal courts in the United States are prohibited from issuing.
Meanwhile, small towns, major cities, and immigrants’ rights organizations mounted a concerted challenge to SB4’s legality. This broad coalition represents the vast majority of the state’s population and garnered the formal support of the respected non-partisan law enforcement organizations Major Cities Chiefs Association and Police Executive Research Forum along with the United States Conference of Mayors. The challengers lodged an array of legal claims under the United States Constitution and Texas Constitution.
The court heard oral arguments on June 26, 2017 on the challengers’ request for a preliminary injunction. A preliminary injunction is temporary relief a court issues if the plaintiffs demonstrate a likelihood of success on the underlying legal challenge and that they would suffer irreparable injury waiting for a final judgment if the law goes into effect. Unlike a permanent injunction, a preliminary injunction buys the court and parties time to more fully consider law’s legality. If convinced that a challenged law is likely illegal and that letting it go into effect would harm any of the plaintiffs, the court can issue a preliminary injunction stopping the law from being implemented while it devotes more time and energy to grappling with the legal challenges.
In a 94-page decision, the San Antonio federal district court preliminarily enjoined large parts of SB4. The state cannot implement the law’s section allowing police officers to enforce immigration law because it is preempted by federal law; the language punishing elected officials who endorse limiting cooperation with ICE because it violates the First Amendment; the provisions barring policies or practices that materially limit cooperation with ICE because violates the Fourteenth Amendment’s Due Process Clause; and the requirement that law enforcement agencies comply with ICE immigration detainers because this would violate the Fourth Amendment.
Importantly, the court did not preliminarily enjoin the language authorizing police officers to ask people about their immigration status. This is not entirely surprising given how closely this section resembles the “show-me-your-papers” provision of Arizona’s SB 1070 law that survived a legal challenge when it reached the Supreme Court. Still, the federal court hearing the SB4 case took pains to clarify the Texas law’s limited reach. Police officers are allowed to ask about immigration status, but all they can do is share this information with ICE. They cannot arrest someone who they think has violated immigration law. They cannot hold someone to wait for ICE to show up. They can’t even continue detaining someone after the criminal basis for detention or arrest ends.
Clearly, this is the first round in a long battle over SB4’s legality. Already, the Texas governor declared that the decision makes Texas “less safe” and vowed to appeal immediately.