Not Even Close to Constitutional – Slate Magazine
On Wednesday night, U.S. District Judge Orlando Garcia blocked major portions of SB 4, Texas’ assault on “sanctuary cities.” The Republican-backed measure requires local police to enforce federal immigration law, cooperate with federal immigration officials, and detain individuals suspected of being undocumented. It also gags local officials from speaking out against SB 4 or federal immigration enforcement; those who do are subject to massive fines and removal from office. Garcia found that major provisions of the law likely violate the United States Constitution’s guarantees of free speech, due process, and freedom from unreasonable searches or seizures. He also ruled that federal law pre-empts SB 4’s most controversial components.
Garcia’s decision is a significant blow to the Republican-led effort to coerce local governments into joining President Donald Trump’s crackdown on undocumented immigrants. On Thursday, I spoke with Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project who represented some of the plaintiffs challenging SB 4, to explore the potential influence of the ruling. Our conversation has been edited and condensed.
Mark Joseph Stern: SB 4’s overarching goal is to compel all Texas law enforcement officers to enforce federal immigration law. Why is that illegal?
Lee Gelernt: SB 4 says that local entities, which are very broadly defined, cannot engage in a practice or adopt a policy that would “materially limit” federal immigration enforcement. We sued on behalf of a mayor and sheriff who were concerned that this provision meant they’d lose local control over their police force—and turn their police into adjuncts to the Trump administration’s immigration enforcement. Complying with SB 4 would drain resources and cause the community to lose trust in the police: Every time community members reported a crime, they’d be concerned that an officer would ask them about their immigration status. We already saw anxiety about that build during the recent hurricane.
Judge Garcia blocked this requirement because Congress has already laid out the procedure through which local law enforcement can become authorized to enforce immigration law. That procedure imposes numerous requirements on local law enforcement. SB 4 circumvents those requirements, which means it’s pre-empted by federal law.
The Trump administration argued that SB 4 did not conflict with federal law. Does that matter?
No. SB 4 conflicts with congressional statutes. It’s Congress that decides what the states can do, and Congress did not allow for a law like SB 4. The Trump administration cannot dictate the meaning of federal law.
One of SB 4’s most startling provisions effectively bars public officials from opposing the measure: No officer or employee of a local government may “endorse” a policy limiting the enforcement of federal immigration law. Each violation incurs a fine of $25,500, and violators may be removed from office. The court blocked this provision on First Amendment grounds. My biggest question is what in the world was Texas thinking?
In court, Texas didn’t really make a full-throated defense of that provision. The state’s lawyers tried to argue that the provision doesn’t actually prohibit speech. But of course it does, even though the statute doesn’t define “endorse.”
The court wrote that “endorse” could mean “a recommendation, suggestion, comment, or other expression in support of” limiting local immigration enforcement.
Right. The provision seems to bar local officials and employees from criticizing SB 4 even when they’re not acting in their public capacity. Police officers and mayors aren’t even sure if they can testify against SB 4 in court. This prohibition is so cryptic—but the penalties are extreme.