Court to hear ‘sanctuary’ arguments
Federal hearing Monday will allow opponents to speak against new law.
Challengers of Senate Bill 4, the “sanctuary cities” ban, will have their first day in federal court Monday before a presiding judge who has recently ruled that federal immigration detention requests central to the controversial state law are unconstitutional.
Monday’s hearing in San Antonio before U.S. District Judge Orlando Garcia will be the first time a coalition of advocacy groups and many of Texas’ largest cities will square off against state Attorney General Ken Paxton’s office and the Trump administration in court.
Beginning at 9:30 a.m., Garcia will hear arguments about the numerous preliminary injunctions filed to stop the law from taking effect Sept. 1.
“For five months, we’ve been on the sidelines while the Legislature has treated Austin’s safety like a political football,” Mayor Steve Adler said in a recent statement. “I’m glad the action is moving to court, where it’s not about politics. It’s about the law.”
The bill’s author, state Sen. Charles Perry, R-Lubbock, has said the law is meant to keep communities safer and to counter “a culture of contempt” for federal immigration law enforcement.
At its heart, SB 4 creates civil and criminal penalties for police and elected officials — including arrest or removal from office — if they block cooperation with Immigration and Customs Enforcement requests to detain jail inmates who are undocumented immigrants or legal permanent residents who could be deported.
The SB 4 hearing before Garcia comes after his June 5 ruling against Bexar County in a detention case.
Garcia found that the Bexar County sheriff had engaged in a “warrantless detention” by holding a Mexican citizen in jail on behalf of immigration officials for more than two months after criminal charges had been dropped. In his summary judgment, Garcia pointed out that immigration violations were mostly civil matters and said that for the sheriff ’s office to assume that probable cause exists to detain everyone for whom ICE issues a detention request, known as a detainer, was “unreasonable.”
Sheriff makes case
Local officials are paying attention to Garcia’s ruling. In a filing last week, Travis County Sheriff Sally Hernandez outlined how requiring her office to comply with ICE detainers could place her between a rock and a hard place.
“By forcing me to detain individuals without discretion, SB 4 places me in the position of having to choose whether to violate the Fourth Amendment rights of individuals in my custody or to personally face criminal penalties and removal from office,” Hernandez said.
SB 4 also allows police to inquire about a person’s immigration status during routine police encounters, such as traffic stops.
The lawsuit was first filed by the small border city of El Cenizo, in the days after Gov. Greg Abbott signed SB 4 into law. Since then, that suit has been consolidated with challenges from San Antonio and El Paso. Austin, Dallas and several advocacy groups have also joined the suit.
Paxton’s office is seeking to have the suit removed from Garcia’s court and consolidated with a lawsuit he filed against Austin just hours after the governor signed SB 4 last month. U.S. District Court Judge Sam Sparks is presiding over that case in Austin.
A busy docket
As the various challenges to SB 4 have rolled in from across the state, a leading argument has emerged against the measure: Texas violated the U.S. Constitution in creating immigration law, a power that is solely reserved for the federal government.
The idea in the supremacy clause of the Constitution is that foreign powers cannot be required to deal with a patchwork of disparate immigration laws passed by states or even municipalities.
SB 4 opponents argue that the new state law requires local officials to treat ICE detainers not as requests, but as legally binding orders, circumventing the federal government’s jurisdiction over such matters.
However, the U.S. Justice Department argues that not only is SB 4 not preempted by the supremacy clause, it is allowed under the Tenth Amendment — powers not delegated to the federal government by the Constitution rest with the states — and doesn’t violate the Fourth Amendment’s protection against unlawful detention.
Paxton’s office hasn’t filed any responses to the complaints in this suit. However, in his suit against Austin and Travis County, Paxton said SB 4 prevents Travis County from hampering the federal government’s “constitutional authority to make removal decisions” for people found to be in the country illegally.
The attorney general’s suit also argues that, until a court declares SB 4 constitutional, governments in places like Travis County will not comply. Hernandez has said she would follow the law.
Sparks will hold the first hearing on the case Thursday in Austin.
On Monday, SB 4’s challengers will attempt to show that allowing the law to take effect would cause harm to people and communities. Court documents show that witnesses are to include elected officials and experts. Some might attempt to show the law would cause economic harm while others could testify that it would create hardship in their respective communities, court documents show.
Austin’s motion to block SB 4 included statements from teenagers and aid groups. A low-cost health clinic and an organization that runs Austin’s domestic violence shelter said SB 4 and recent ICE raids created fear of deportations in the immigrant communities.
Garcia will likely not make any ruling on Monday, according to Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.
On Friday, U.S. Attorney General Jeff Sessions’ office filed paperwork with the court, notifying Garcia of the Justice Department’s intent to defend SB 4 in this suit.
“The Department of Justice fully supports Texas’s effort and is participating in this lawsuit,” Sessions said in a statement Friday, “because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nation’s immigration laws.”
The Justice Department will argue in defense of the law but will not be able to present any evidence, Perales said.
The move by Sessions was expected, and it vaulted SB 4 from a state issue to a national one.
Allowing SB 4 to take effect would influence other states to create similar laws, said Austin City Council Member Greg Casar, an ardent critic of the law.
“Stopping SB 4 is bigger than Texas,” Casar said.