The Uncertain Future of Texas' Senate Bill 4
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Senate Bill 4 (SB 4), signed into law by Texas Republican Gov. Greg Abbott on May 7, 2017, is legislation crafted to ban so-called “sanctuary cities.” The controversial legislation would deputize all Texas law enforcement officers to ask a person’s immigration status during an arrest or lawful detention and require that jail officials honor all “detainer requests” from Immigration and Customs Enforcement (ICE) to hold an individual for possible deportation. The law would also introduce unique burdens on local governments — including removal from office any elected or appointed officials who do not comply with the law, steep fines of up to $25,000 per day for entities found in violation, and a Class A misdemeanor charge for a sheriff, chief of police, or constable who knowingly fails to comply with ICE detainer requests.
Less than 24 hours after SB 4 was signed, Texas Attorney General Ken Paxton filed a preemptive lawsuit asking the U.S. District Court for the Western District of Texas to uphold the constitutionality of SB 4. Paxton’s lawsuit, also known as a complaint for declaratory judgment, was dismissed by U.S. District Judge Sam Spark on August 9. Almost simultaneously, the City of El Cenizo, Maverick County, and the League of United Latin American Citizens (LULAC) became the first to draw up a lawsuit against SB 4, arguing it does not properly define “sanctuary cities” and stating that “this lawsuit is about sovereignty and a local government’s autonomy to devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government.” By intervention or consolidation, El Paso County, the City of Austin, Travis County, the City of Dallas, the City of Houston, and the Texas Association of Hispanic County Judges and County Commissioners also joined the lawsuit.
Abbott, the Hidalgo County sheriff, and McAllen’s police chief published an op-ed defending SB 4, arguing that the law will make Texas’ communities safer by helping to identify dangerous criminals, prohibiting racial profiling and discrimination, and providing new protections for crime victims and witnesses. Following the op-ed’s publication, 23 law enforcement officials signed on to support the op-ed, and the governor’s position. The U.S. Department of Justice also filed a Statement of Interest supporting the law and siding with Texas in the battle over SB 4. This controversial law has clearly divided Texas state leadership.
Critics of the law argue it will lead to widespread racial profiling, exhaust local resources, and violate various constitutional guarantees, including the 1st, 4th, and 14th amendments, and the supremacy clause of the U.S. Constitution. Moreover, lawyers have argued that ICE immigration detainers have many legal shortcomings, and violate constitutional rights — most notably 4th amendment rights to protection from unreasonable search and seizure. Law enforcement and public officials who do not support the law have also expressed concerns, as they already operate with limited resources. They argue that their departments will need to spend time and money to train and/or retrain officers, given that the state of Texas has not provided any official training, funding, or guidance on how to best implement the law. SB 4 is, administratively, an equivalent to an unfunded mandate, they say.
On August 30, 2017, Chief U.S. District Judge Orlando Garcia granted a preliminary injunction against SB 4, scheduled to go into effect on September 1, 2017, blocking key provisions. In his 94-page decision, Garcia stated, “There is overwhelming evidence by local officials, including local law enforcement, that SB 4 will erode public trust and make many communities and neighborhoods less safe.”
Interestingly, the decision by Judge Garcia came amid a particularly difficult time, namely, the added burden on cities’ human and financial resources brought about by Hurricane Harvey. The hurricane also stressed immigrant communities, particularly undocumented residents, who were unsure about the outcome if they interacted with law enforcement during the disaster. Houston, for example, is the third largest metro area in the United States with the most unauthorized immigrants — approximately 575,000. Concerns arose that, because of SB 4, unauthorized immigrants would fear to seek rescue, services or other assistance.
Even so, on August 31, Paxton filed an appeal to the U.S. Court of Appeals for the Fifth Circuit and asked for a stay of the district court ruling. The Mexican American Legal Defense and Educational Fund (MALDEF) criticized Paxton’s appeal as “the epitome of effrontery, insensitivity, and insult” in the aftermath of Hurricane Harvey and condemned its effects on the unauthorized immigrant community. However, Paxton’s appeal clearly demonstrates that Texas state leadership has shown little regard for addressing the legitimate concerns of cities and counties regarding SB 4
It remains to be seen if SB 4 will pass constitutional muster. The 5th Court of Appeals will hear oral arguments on September 22 in the appeal of the injunction; a hearing on the merits of the case is set for November 6. While SB 4 has been defended as a law that will improve public safety, it lacks the elements of proper resources, training, and oversight and fails to achieve a balance between state and local concerns. Moreover, Texas should also consider the potential negative economic impact if 10-15 percent of undocumented immigrants were to leave Texas as a result, as it would shrink the state’s labor force and could cut state and local revenues by $220-335 million per year.
Pamela Lizette Cruz is the research analyst for the Baker Institute Mexico Center. Her current research interests include cross-border governance, border security, institutional development and social justice.
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