Texas De­clares War on Sanc­tu­ary for Il­le­gal Im­mi­grants

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With all the le­gal ‘ri­fle shots’ go­ing off be­tween the state of Texas and the com­mu­ni­ties within the state who it ac­cuses of har­bor­ing il­le­gal im­mi­grants in sanc­tu­ary, it is be­gin­ning to look like the state’s real tar­gets in all of this are not the im­mi­grants them­selves. It is any en­tity within the state that chal­lenges the state's power.

The U.S. Con­sti­tu­tion is un­der at­tack in Texas and the state is lead­ing the charge.

On April 27, 2017, the first ‘ri­fle shot’ went out – from the state. It came when Texas House passed Se­nate Bill 4, also re­ferred to as the “anti-sanc­tu­ary cities” bill. The law al­lows state and lo­cal gov­ern­ment of­fi­cials, plus even col­lege cam­pus police, to be charged with a Class A mis­de­meanor if they fail to com­ply with de­tainer re­quests from im­mi­gra­tion of­fi­cials at the Fed­eral level.

A de­tainer hold, also known as an im­mi­gra­tion hold, is a for­mal re­quest from ICE, the U.S. Im­mi­gra­tion and Cus­toms En­force­ment ser­vice, that lo­cal law per­son­nel must hold a pris­oner on sus­pi­cion of be­ing an il­le­gal im­mi­grant, even though there may be no state or lo­cal charges filed against the per­son. That is, in some peo­ple’s eyes at least, a di­rect vi­o­la­tion of the 4th and 14th amend­ments to the U.S. Con­sti­tu­tion, which pre­vent false im­pris­on­ment. Yet it hap­pens ev­ery day across the United States.

Un­der the new Texas law, those state and lo­cal gov­ern­ment of­fi­cials who refuse to co­op­er­ate with the de- tainer re­quest, if found guilty, can be sent to jail for up to a year and fined up to $25,000 per day that they do not com­ply.

The law fur­ther al­lows of­fi­cers to chal­lenge the im­mi­gra­tion sta­tus of any­one who was law­fully de­tained for any other rea­son. That could in­clude of­fenses as small as traf­fic mov­ing vi­o­la­tions or even lit­ter­ing. They could de­mand proof of cit­i­zen­ship and legally de­tain them un­til such proof has been made avail­able. The stan­dard ID that most peo­ple carry is not suf­fi­cient to prove cit­i­zen­ship.

It also makes it a crime for such of­fi­cials not to as­sist ICE if it re­quests them to act on their be­half in their lo­cal com­mu­nity. Though it has not hap­pened yet, it could end up, for ex­am­ple, re­quir­ing cam­pus police at a school to be­gin crack­ing down on at­ten­dees and/ or em­ploy­ees ICE may sus­pect of be­ing il­le­gals. It also could end up re­quir­ing un­trained in­di­vid­u­als to be brought in to en­force im­mi­gra­tion laws and po­ten­tially vi­o­late civil rights through such ‘au­to­matic’ (and il­le­gal) ap­proaches as racial pro­fil­ing – as­sum­ing if the in­di­vid­u­als are Latino then per­haps they are more likely to be an il­le­gal than some­one else. With San An­to­nio, one of the tar­gets for the State’s crack­down on sanc­tu­ary ac­tiv­i­ties, hav­ing 936,000 (or 64%) of its 1.49 mil­lion res­i­dents as Latino, and Austin, with 34% of its res­i­dents also Latino, such il­le­gal ac­tions which amount to racially-tar­geted ‘stop and frisk’ op­er­a­tions are sure to cre­ate even more un­rest in the com­mu­ni­ties than ex­ist­ing be­fore.

The sec­ond ‘ri­fle shot’ that came in this bat­tle also came from the Texas State gov­ern­ment. An­tic­i­pat­ing that there would be nu­mer­ous in­di­vid­ual law­suits filed against Se­nate Bill 4 and charg­ing it as un­con­sti­tu­tional, At­tor­ney Gen­eral Ken Pax­ton filed his own ‘pre-emptive strike’ law­suit on May 7 against the city of Austin, Travis County (the county in which Austin re­sides), and sev­eral in­di­vid­u­als, in­clud­ing Travis County Sher­iff Sally Her­nan­dez. (Her­nan­dez had pre­vi­ously halted deputies from ask­ing about im­mi­gra­tion sta­tus and had sup­ported lim­ited co­op­er­a­tion with Fed­eral Im­mi­gra­tion agents.) The suit uses those lo­ca­tions as ex­am­ples of how sanc­tu­ary cities and lo­cal au­thor­i­ties who agree with sanc­tu­ary have cre­ated prob­lems for law-abid­ing cit­i­zens. It also asks that the court rule that the new law is con­sti­tu­tional.

There are many things bro­ken about this new law, not the least of which are that is at­tack­ing the symp­tom rather than the root cause be­hind il­le­gal im­mi­gra­tion. Decades ago, the prom­ise of bet­ter jobs and op­por­tu­ni­ties across the U.s.-mex­i­can bor­der did at­tract many to seek greener pas­tures on the north­ern side of that di­vide. Now, es­pe­cially with the NAFTA treaty in place and many en­ter­prises in­ten­tion­ally build­ing ad­vanced fac­to­ries and other kinds of fa­cil­i­ties south of the bor­der, good jobs are in fact far more avail­able than be­fore – so there is less rea­son to leave now just be­cause of job op­por­tu­nity.

Those who im­mi­grate il­le­gally and seek sanc­tu­ary within U.S. bor­ders also are far from the crim­i­nals and mal­con­tents Don­ald Trump and oth­ers would have one be­lieve. Many come here and, with school­ing and hard work, end up even­tu­ally get­ting good jobs, make a pos­i­tive con­tri­bu­tion to so­ci­ety, en­ter the econ­omy them­selves and buy things (cre­at­ing other jobs), and pay lo­cal and fed­eral taxes. There are of course those who come in to skirt the law and live in the shad­ows as ac­tive crim­i­nals, but those are a far smaller part of those who il­le­gally en­ter the U.S. than the other kind de­scribed above and can be con­trolled through ex­ist­ing laws.

A far more se­ri­ous is­sue, es­pe­cially re­gard­ing Mex­ico and those com­mu­ni­ties close to the bor­der, in­volves the grow­ing power of il­le­gal drug car­tels. Those car­tels, which con­trol and cor­rupt a size­able per­cent­age of the pop­u­la­tion in their re­gions, lead a vi­o­lent ex­is­tence where those stand­ing against them are of­ten in more jeop­ardy than those who choose to join the crim­i­nals’ ranks. Even worse, thanks to U.S. Gov­ern­ment in­volve­ment in train­ing killers on both sides of the Mex­i­can drug wars, in­clud­ing cor­rupt au­thor­i­ties and those who man­u­fac­ture and dis­trib­ute the il­le­gal goods, the fights are es­ca­lat­ing to higher lev­els of body counts year af­ter year. The U.S. has even taken the step of pro­vid­ing il­le­gal arms to the crim­i­nals them­selves, un­der mul­ti­ple pro­grams in­clud­ing the Obama-era fi­asco known as Op­er­a­tion Fast and Fu­ri­ous. That last step was taken with the thought of the crim­i­nals be­ing traced in their crimes us­ing the weapons them­selves to do that. It was a crim­i­nally stupid move that fu­eled more killings and deaths than might have been there with­out the weapons.

Then there is the prob­lem of the buy­ers of the il­le­gal drugs them­selves. For the pur­poses of Texas, those buy­ers are vir­tu­ally 100% fully-le­gal Amer­i­can cit­i­zens, with­out whose money and ad­dic­tion to the drugs both the drug car­tel ac­tiv­ity and the killings south of the bor­der would not ex­ist in the first place.

With Amer­i­cans caus­ing much of the prob­lems that drive il­le­gal im­mi­gra­tion, a more log­i­cal ap­proach to deal­ing with sanc­tu­ary cities, towns and those au­thor­i­ties who align with them might have been to look at the root causes on both sides of the bor­der first. Se­nate Bill 4, how­ever, with its in­tent to crush dis­sent and force com­pli­ance with bad law en­force­ment prac­tices, sup­ports the hard-line view that the im­mi­grants are the ones cre­at­ing the prob­lems. It also sup­ports that vir­tu­ally any­thing, in­clud­ing find­ing mi­nor crimes to charge peo­ple who might be il­le­gal im­mi­grants – and then ‘de­mand­ing their papers’ – is the right way to make things bet­ter.

It does not help that U.S. At­tor­ney Gen­eral Jeff Ses­sions, him­self with a track record which sug­gest deep-seated racism in some of his pre­vi­ous ac­tiv­i­ties (such as the sup­port of Alabama’s racist voter ID law), also sees sanc­tu­ary cities and coun­ties as hav­ing higher crime rates than oth­ers. Though the facts do not sup­port what he claims, his state­ments at a Las Ve­gas fo­rum on July 12, which he ap­pears to have based on a Fox News sum­mary of a Wash­ing­ton Post story (see the anal­y­sis of all that here), have added fur­ther fuel to those who see Sanc­tu­ary Cities and re­lated of­fi­cials as a prob­lem.

Un­elected Pres­i­dent Trump of course added fur­ther flames to this ar­gu­ment with his con­tin­ued ham­mer­ing on il­le­gal im­mi­grants as a ma­jor cause of ris­ing crime across the United States. He started this back when he was just can­di­date Don­ald Trump. He was wrong about the is­sue then and is wrong about it now.

Be­sides the po­ten­tial con­sti­tu­tional is­sues with the new law, there is also a high risk to Texas that trade and tourism, in­clud­ing ma­jor con­ven­tions that of­ten come to the state, may pull back sig­nif­i­cantly if the law stays on the books. That pre­vi­ously hap­pened with sim­i­lar laws which had been in ef­fect in Arizona, as well as with anti-gay le­gal moves in the state of North Carolina more re­cently.

Those who dis­agree with the new law make a size­able body. At the end of May, mul­ti­ple protests were held in var­i­ous lo­ca­tions across the state to protest the law.

Protest­ing, how­ever, can only do so much. On June 1, San An­to­nio coun­ter­at­tacked the state with a fed­eral law­suit against the state of Texas, Gov­er­nor Greg Ab­bott and At­tor­ney Gen­eral Ken Pax­ton. In that suit, San An­to­nio said the new law ef­fec­tively “hi­jacks” the author­ity of lo­cal gov­ern­ment as well as col­leges and uni­ver­si­ties to pro­tect their com­mu­ni­ties as they see fit. It fur­ther at­tacked the penal­ties for non-com­pli­ance with the law as “dra­co­nian”.

In the com­plaint San An­to­nio goes on to say that, “While pur­port­ing to pro­tect the State of Texas from the neg­a­tive im­pact of un­doc­u­mented im­mi­gra­tion, SB 4 robs lo­cal ju­ris­dic­tions of their abil­ity to su­per­vise of­fi­cers and en­sure pub­lic safety, and co­erces law en­force­ment to ded­i­cate lim­ited re­sources to a job that is sup­posed to be per­formed and funded by the fed­eral gov­ern­ment.” The city asks for a declara­tory judg­ment that the new law vi­o­lates the Con­sti­tu­tion’s Supremacy Clause, Con­tracts Clause, the First, Fourth, and 14th Amend­ments, and Sec­tion 2 of the Vot­ing Rights Act of 1965.

The June 1 suit goes on to say that, “By for­bid­ding mu­nic­i­pal­i­ties and col­leges from cre­at­ing any lim­it­ing guid­ance … un­trained and un­su­per­vised lo­cal police of­fi­cers will dis­pro­por­tion­ately de­tain for­eign-born and Latino in­di­vid­u­als, es­pe­cially those that do not have a Texas driver’s li­cense.” It also points out that the new law’s re­quire­ment that lo­cal gov­ern­ments must pro­vide as­sis­tance to ICE “could re­sult in police of­fi­cers de­cid­ing sua sponte to carry out ‘en­force­ment as­sis­tance’ in sen­si­tive lo­ca­tions, such as schools and fu­ner­als, where fed­eral im­mi­gra­tion of­fi­cers will not con­duct en­force­ment”.

The law­suit also makes the case that Se­nate Bill 4 will in fact make things worse, not bet­ter, when it comes to the sup­posed real rea­son for the law – con­trol­ling il­le­gal im­mi­gra­tion. It says that “San An­to­nio is con­vinced that the im­mi­grant com­mu­nity will no longer co­op­er­ate with police to the ex­tent they did be­fore SB 4 passed and that SB 4 will dis­cour­age im­mi­grants from re­port­ing crimes and par­tic­i­pat­ing in health and so­cial ser­vice pro­grams, such as WIC”.

San An­to­nio’s le­gal rep­re­sen­ta­tion for this case comes from Mariso Bono of the Mex­i­can Amer­i­can Le­gal De­fense and Ed­u­ca­tion Fund, and San An­to­nio City At­tor­ney Deb­o­rah Lynne Klein.

For the city of Austin, the new state law was just another in a se­ries of di­rect at­tacks on its poli­cies to pro­vide some de­gree of sanc­tu­ary within its bor­ders. At­tor­ney Gen­eral Pax­ton, in his pub­lic state­ments about Austin’s com­plic­ity in pro­tect­ing il­le­gals, said that the city had de­nied more de­tainer re­quests than another gov­ern­ment ju­ris­dic­tion in the en­tire United States, for the pe­riod from Jan­uary 28 through Fe­bru­ary 3. In re­sponse to ac­tions like this, Gov­er­nor Pax­ton had pre­vi­ously de­lib­er­ately with­held $1.5 mil­lion in state grants from Travis County, where Austin re­sides and is the county seat.

With that kind of bat­tle be­hind it, the city of Austin filed its own ‘ri­fle shot’ on June 2, by join­ing the law­suit al­ready filed San An­to­nio. In an­nounc­ing the le­gal ac­tion, Austin City Coun­cil Mem­ber Greg Casar called SB 4 “im­moral and un­con­sti­tu­tional”.

Oth­ers have also take ac­tion against the state on this mat­ter. They in­clude the city of El Paso, El Paso County, the city of El Cenizo, Mav­er­ick County, the Work­ers De­fense Project and the Mex­i­can Amer­i­can Le­gal De­fense and Ed­u­ca­tion Fund (MALDEF). In to­tal, over 11% of the to­tal pop­u­la­tion of the state, as rep­re­sented by cities who have filed ac­tion against the new law, has lined up against the state of Texas on this.

If none of the law­suits suc­ceed in at least caus­ing a tem­po­rary stay of the ac­tion, Se­nate Bill 4 will go into ef­fect Septem­ber 1, 2017.

Photo by Matt Rhodes,

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