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Texas anti-sanctuary city law provisions barred based on preemption, First Amendment

By Matt Pavich, J.D.

In a lengthy and detailed opinion, a federal district court in Texas has issued a preliminary injunction barring the state of Texas from implementing and enforcing key provisions of Senate Bill 4, the controversial anti-sanctuary city law signed into law in May. The court barred enforcement and implementation of the law’s enforcement and “endorsement” provisions, among others, finding that the provisions were overly vague and were preempted by federal law (City of El Cenizo v. State of Texas, August 30, 2017, Garcia, O.).

On May 7, 2017, Texas Governor Greg Abbott signed SB 4 into law. The law mandates that campus police departments and local government entities and law enforcement officials comply with federal immigration laws and detainer requests; it also created civil and criminal penalties for entities that do not enforce the law. Those penalties include a civil penalty for entities that violate the law of up to $25,500 for each day of the violation and removal from office for any elected or appointed official who does not comply with the law. A number of cities filed suit to enjoin the law.

Immigration inquiry provision. The plaintiffs initially argued that SB 4 was preempted in its entirety, but states may regulate certain matters pertaining to immigration. Accordingly, the court addressed each challenged provision, including that the immigration inquiry, information sharing, and federal enforcement assistance provisions improperly encroached on federal territory. As to the first, there was no total preemption, reasoned the court, because the law authorized immigration status inquiries only within the context of a lawful stop or arrest. The state law did not conflict with federal law vesting interrogation authority in a defined group of federal agents because the state law did not require local officers to make immigration inquiries.

Information sharing. The information sharing provision prohibited local entities from maintaining policies designed to prevent local officials from recording immigration status information or from sharing it with federal, or other governmental, entities. In the court’s view, the only permitted—but not required—action under SB 4 following an immigration inquiry is sharing and maintaining information.

Enforcement assistance. The plaintiffs alleged that the enforcement provisions conflicted with federal law because they allowed local officials to perform the duties of immigration officials in a manner inconsistent with federal law. The court found that the plaintiffs had shown a likelihood of success on this argument because SB 4 improperly enacted regulations creating requirements for local officers to participate in immigration enforcement—through partnerships with the U.S. Attorney General—that fell below federally mandated standards. It rejected the state’s argument that it should be allowed to engage in enforcement actions independent of federal supervision or direction. Because SB 4 bypassed federal training standards and supervision and created a local, independent enforcement procedure that would likely conflict with the federal enforcement program, the court found that the plaintiffs had shown a likelihood of success on the merits here.

Viewpoint discrimination. The court also found that SB 4 violated the First Amendment. Under the law, local entities, including officers and employees of a municipal entity, are prohibited from “endorsing policies” that would “materially limit” immigration law enforcement; violations of the provision could be punished by removal from office. The plaintiffs contended that this was overbroad. As written, the provision could be read as prohibiting any written or oral statement, made at any time, in any place, and in any manner, including statements in open or public forums, noted the court. The provision contained a long list of speakers who were prohibited from endorsing certain policies, including any elected officials. The public has a legitimate concern in the enforcement of, and views on, immigration laws, but SB 4 permitted speech on only one side of the debate. Accordingly, the plaintiffs were likely to succeed in their argument that the provision was overly broad.

“Endorsement.” The court also found that the plaintiffs were likely to succeed in their argument that the provision was overly vague. SB 4 did not define “endorsement,” thus making it highly unclear what kind of conduct would constitute a punishable endorsement. The law imposed civil penalties for “intentional” violations, but it did not suggest guidance on what would constitute an intentional violation. Prosecutions would therefore be selective and arbitrary, and violate the First Amendment.

Due process concerns. Vagueness also created severe due process concerns. SB 4 prohibited policies that “materially limit” immigration enforcement. The state argued that only those policies that substantially limit immigration enforcement would be prohibited, as opposed to day-to-day decisions about how to allocate municipal resources, but the court found that these limiting definitions were contrary to the statute’s text, which defined policy as including both formal, written rules and informal policies. This lack of clarity, the court ruled, would leave localities across the state uncertain as to whether and how they should proceed with immigration enforcement.

That, in turn, created the risk that local prosecutors could engage in harsh enforcement of local officials, as evidenced by threats made already by the governor, e.g., that “Texas will hammer Travis County,” and that “we’re going to be seeking court orders that could lead to putting these people behind bars, the officials who are violating their oath of office,” against counties and officials he perceived as being soft on immigration.