Lawyers asked the 5th U.S. Circuit Court of Appeals on Tuesday to block a Texas immigration crackdown while a lawsuit moves forward.
But the three-judge federal panel based in New Orleans appeared skeptical of some of those arguments, with one judge questioning whether the officials suing the state of Texas had standing to bring one of the key claims.
The Republican-dominated Texas Legislature passed Senate Bill 4 in May, after years of trying to push through a law cracking down on “sanctuary cities.” The bill makes it a crime to disregard Immigration and Customs Enforcement requests, known as “detainers,” to hold suspected undocumented immigrants in local jails on the federal government’s behalf.
Officials who enact such “sanctuary” policies can be punished under SB4 with up to a year in jail, removal from office and fines of up to $25,500.
The sweeping state immigration law also allows police officers to ask the immigration status of those they stop for other reasons, and it bans local officials from limiting cooperation with federal immigration authorities more generally.
Several jurisdictions ― including the South Texas town of El Cenizo; the state capital, Austin; and the cities of Houston, San Antonio and El Paso ― sued the state of Texas after the law passed, arguing that it was vague and usurped immigration authority reserved to the federal government. They also contend that forcing localities to obey detainers blindly would violate the constitution.
“Congress never wanted those penalties ― Congress wanted a cooperative scheme,” American Civil Liberties Union attorney Lee Galernt said Tuesday, according to an audio recording of the hearing. “This is a sea change.”
Critics also contend that ICE detainers lack probable cause and amount to an illegal arrest if the person would otherwise be freed or released on bond. Several judges ― including U.S. District Judge Orlando Garcia, who presides over the SB4 case ― have ruled that in some cases ICE detainers violate the 4th Amendment.
But judges who heard oral arguments Tuesday to decide whether the law should be blocked repeatedly questioned those criticisms, appearing skeptical that opponents of the law would have standing to sue over 4th Amendment violations.
Complaints about 4th Amendment violations are normally brought by individuals rather than government agencies, U.S. District Judge Edith Jones said.
“You’re not supposed to raise it on behalf of other parties,” Jones added. “So I just wondered how the cities (A) have a right under the 4th Amendment and (B) how it’s being harmed by a policy that applies only to certain people inside the country.”
The panel also appeared to doubt one of the key claims from the state of Texas. Public officials or employees could be punished for enacting so-called sanctuary policies only if they took action to violate SB4, said the state’s solicitor general, Scott Keller.
“Congress never wanted those penalties ― Congress wanted a cooperative scheme. This is a sea change.”
- ACLU attorney Lee Galernt
But the phrasing of the law, which bars officials from “endorsing” sanctuary policies, might make bureaucrats and elected officials afraid to speak their minds, one of the judges suggested.
“Would it have a chilling effect of some sort?” the judge asked, according to the recording.
The Trump administration has championed Texas’ hardline approach to immigration, which complements the White House’s emphasis on boosting deportations and casting aside Obama-era leniency for some groups of undocumented immigrants.
Scott Stewart, a Justice Department lawyer, appeared in court Tuesday to argue in favor of allowing SB4 to move forward.
It’s unclear when the panel will rule.
“Difficult questions were asked of both sides,” Andre Segura, the Texas legal director for the ACLU, said on a call with reporters after the hearing. “We’ll have to wait and see.”
SB4 has yet to be fully implemented. Days before it went into effect on Sept. 1, Garcia issued a preliminary injunction that blocked much of it.
Police were allowed to ask the immigration status of those they arrested under the injunction, but neither the requirement to obey detainers nor the punishments for failing to do so were allowed to take effect.
But a confusing ruling from a panel of judges of the 5th Circuit in September partially reversed that decision.
The order allowed the state of Texas to require localities to honor ICE detainers while simultaneously stating that localities didn’t have to honor all detainers. The part of the law meting out punishments to those who violate SB4 remained blocked.
But Travis County, which includes Austin, abandoned its policy of declining most ICE detainers after the the 5th Circuit ruling. Travis County was the only jurisdiction in Texas with a formal policy limiting ICE detainers.