Thursday, March 15, 2018
The Fifth Circuit earlier this week upheld most of Texas's SB4, the state law banning local jurisdictions from adopting sanctuary-city policies. The ruling means that most of SB4 stays in place and applies to Texas jurisdictions.
The ruling is a victory for Texas, which adopted the measure in order to crack-down on sanctuary cities in the state. It's only preliminary--so goes to the plaintiffs' likelihood of success on the merits, and not (necessarily) the merits themselves--but, given the nature of the (facial challenge) case, is certainly the same as a ruling on the merits.
SB4 has three provisions at issue in the case: (1) the "materially limit" provision, which bans local jurisdictions from "prohibit[ing] or materially limit[ing]" an officer from asking a lawfully detained individual's immigration status, from sharing that status with federal agencies, and from assisting federal agencies in enforcement; (2) the "detainer" provision, which requires local officers to comply with federal immigration detainers; and the "endorsement" provision, which prohibits local officers from endorsing sanctuary policies.
Here's what the court said:
The "Materially Limit" Provision
The court rejected the plaintiffs' claims that federal law preempted these prohibitions and that "materially limit" is unconstitutionally vague. As to preemption, the court said that federal law didn't field-preempt, because "SB4 and the federal statutes involve different fields": "Federal law regulates how local entities may cooperate in immigration enforcement; SB4 specifies whether they cooperate." The court said that it "could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly." It also said that Congress didn't state a clear purpose to field-preempt. Finally, the court said that the Tenth Amendment points against field preemption:
The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement. Congress could not pass a federal SB4. But if that is so, it seems impossible that Congress has occupied the field that SB4 regulates.
The court also held that the requirements weren't conflict preempted, because, under the requirements, local officers could comply with both federal law and SB4. In particular, the court said that any authority (or requirement) that SB4 imposed upon local officers did not conflict with the allowable cooperation between local and federal officers under federal immigration law, and the authority of federal immigration officials.
Finally, the court held that "materially limit" isn't unconstitutionally vague, especially in the context of this facial challenge.
The "Detainer" Provision
The court held that this provision, which requires local officers to notify federal officials when they release an alien and to maintain custody of the alien up to 48 hours after the preexisting release date so that DHS can assume custody, did not violate the Fourth Amendment on its face (although the court didn't, and couldn't, say whether it might violate the Fourth Amendment in any particular case).
The "Endorse" Prohibition
The court held that SB4's provision that a "local entity or campus police department" may not "endorse a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws" violated the First Amendment. The court rejected a narrowing construction of "endorse" offered by the state. The court noted, however, that "[t]his conclusion does not . . . insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as 'government speech.'" But this issue wasn't before the court (because the plaintiffs "do not represent the public employees putatively covered by Garcetti and the government speech doctrine.")