NEW ORLEANS — Attorneys for numerous Texas local governments and immigrant advocates told a federal appeals court Tuesday that a Texas law aimed at cracking down on so-called sanctuary cities puts illegal and unconstitutional burdens on local authorities.
The Texas Legislature approved the law in the spring. It requires local law enforcement agencies to honor federal immigration requests to detain people in local jails for possible deportation. The law also allows police to inquire about people’s immigration status during routine interactions such as traffic stops. It subjects some law enforcement officials with removal from office and criminal charges if they don’t comply with the law.
Opponents argue, among other things, that the law illegally puts local law enforcement officers in the role of federal immigration officers, and that it puts local officers in the position of violating detainees’ constitutional rights against illegal search and seizure. The critics also argue that some parts of the law are unconstitutional because they are vague as to exactly how local officers are to fulfill their duties with respect to immigration law.
Members of the three-judge 5th Circuit Court of Appeals panel questioned the law’s opponents closely, and Judge Edith Jones appeared skeptical of some of their claims. Jones and Judge Jerry Smith both questioned a municipality’s legal standing to bring a claim under the U.S. Constitution’s Fourth Amendment, which they said is usually asserted by an individual being harmed, rather than a government entity.
Jones also pushed back on arguments that the law is vague with its bar on patterns or practices that “materially limit” immigration enforcement. “We all know it when we see it,” said Jones, who also said the burdens placed on local law enforcement appear small. “It amounts to making phone calls,” she said.
Lee Gelernt, an American Civil Liberties Union attorney representing the border city of El Cenizo, disagreed. He said the law, known as SB4, takes away local law enforcement leaders’ ability to prioritize law enforcement actions under constant threat of criminal fines or even removal from office.
“In the past, you could do whatever cooperation you wanted and you weren’t penalized,” Gelernt said later, outside the courthouse. Under the new law, he said, local authorities could be compelled to participate in raids or other actions. “It’s a drain on big cities, but it’s also a drain like cities like El Cenizo … where there are far fewer police officers.”
Opponents also said the law is written so broadly that some local officials could face punishment for even speaking out against it, an argument disputed by Texas Solicitor General Scott Keller.
The 5th Circuit panel did not indicate when it would rule.
Tuesday’s arguments mark the second time in as many months that 5th Circuit judges heard arguments in the case. After U.S. District Judge Orlando Garcia blocked much of the law on Aug. 30, Texas sought an emergency order allowing enforcement. A three-judge 5th Circuit panel heard arguments on Sept. 22 while immigrant advocates beat drums and chanted outside the federal courthouse in New Orleans. Days later the panel eased restrictions on enforcement of the law with a complex order that was interpreted differently by both sides.
Municipal officials from Dallas, Houston, El Paso, San Antonio and Austin are among the opponents. The Mexican American Legal Defense and Educational Fund is representing some localities.
President Donald Trump’s administration backs the law. The U.S. Justice Department has joined Texas in defending it.
There were no demonstrations outside the courthouse Tuesday. After the hearing, local officials opposed to the law told reporters it promotes racial profiling and is engendering fear among families in immigrant communities.
Texas Attorney General Paxton, reading from a prepared statement, said an aim of the law is to protect the state’s citizens from criminal immigrants. “Americans overwhelmingly understand that one of our first duties as a nation is to protect our citizens,” he said.
In addition to Smith and Jones, both nominated by President Ronald Reagan, Judge Edward Prado, nominated by President George W. Bush, was on the panel.
This story has been corrected to reflect that Judge Edith Jones is on the panel, instead of Judge Stephen Higginson.