California and Texas — approaches to immigration and the power of states to craft immigration

For better and worse, the power to decide whether local law enforcement assists Immigration and Customs Enforcement (ICE) rests in large part with the states — not the federal government and not city or county governments.

California and Texas, two of the biggest political, economic, and social power houses in the country, have both passed legislation taking a strong stand on how their communities will interact with immigration enforcement efforts that, unsurprisingly, puts them on opposite sides of the sanctuary city debate.

{mosads}Both laws are currently the subject of highly-contested litigation. However, despite the laws’ disparate approaches, both will likely move forward. For the courts the issue is not which policy is best, but rather who, in our federalist system, has the power to decide.

In May 2017 Texas Gov. Greg Abbott (R) signed into law SB4 to prohibit sanctuary city policies and impose duties on local law enforcement to assist in the federal government’s immigration efforts.

SB 4 was written to insulate from prosecution or dismissal any law enforcement official working in a sanctuary jurisdiction who wants to ask about immigration status, criminally or civilly punish any local jurisdiction — and official — with a sanctuary policy of not asking, arresting, or detaining someone based on immigration status, and penalize public officials for speaking out in favor of sanctuary policies.

Before SB4 could enter into force on Sept. 1, 2017 a coalition of cities and counties obtained a preliminary injunction halting all but the provision allowing officers to ask about immigration status. The state then appealed to the Court of Appeals for the 5th Circuit.

Effectively doing the opposite as Texas, on Oct. 5, 2017 California Gov. Jerry Brown (D) signed into law the California Values Act, SB 54, limiting the use of local law enforcement resources for federal immigration tasks.

SB 54 prohibits local officials from asking about or arresting based on immigration status, halts holding immigrants on ICE detainers or reporting them to ICE, and limits immigration enforcement at schools, hospitals, and courthouses.  

The law still allows federal immigration agents to interview those being held in local custody and allows reporting to ICE of any immigrant with a previous conviction from a list of about 800 crimes. A poll published at the beginning of November 2017 showed that 53 percent of Californians support SB 54 and 29 percent oppose.

SB 54 entered into force on Jan. 1, 2018. On March 6, 2018 the Trump administration sued California in federal district court claiming that SB 54 and two of its other laws limiting immigration enforcement violate the Constitution’s supremacy clause by preventing federal immigration agents from carrying out their job: AB 450 restricting employer cooperation in workplace raids and AB 103 establishing state inspection and review of detention facilities.

Unfortunately for the administration, not only is there nothing in the Constitution that requires that local law enforcement use their limited resources to do the federal government’s job, the 10th Amendment to the Constitution, which establishes our federalist, power-sharing form of democracy, mandates that: “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The Supreme Court has ruled that the federal government therefore cannot commandeer state governments to enforce federal law.

States consequently have the power to set local law enforcement policies, choosing whether and to what extent to assist ICE [they cannot actively prevent ICE from carrying out its job but are under no obligation to affirmatively aid ICE].

While the logic of the administration’s lawsuit is fundamentally flawed, it is possible to understand the frustration of local officials like Orange County Sheriff Sandra Hutchens.  Just like cities and counties across Texas were not happy with the passage of SB 4, and sued the state politicians in Austin, there are local jurisdictions in California that are not happy with the choices made by the state politicians in Sacramento. Similarly, they want the autonomy to make their own decisions on how to best carry out their law enforcement obligations and are taking action.

For example, in order to be able to continue notifying ICE of detainee release dates, on March 26, 2018, Sheriff Hutchens decided to make all detainee releases public. The next day, March 27, 2018 the Orange County Board of Supervisors voted to join the Trump administration’s lawsuit in arguing that they should be allowed to continue enforcing immigration law. The cities of Santa Ana, Escondido and Ripon followed suit. Several cities, beginning with Los Alamitos in Orange County have passed or are considering ordinances opting-out of SB 54.

However, the ordinances will likely be struck down by the courts and their legal claims in the administration’s lawsuit will fail. Although local policing power reserved to the states by the U.S. Constitution can be delegated to local jurisdictions by a state’s constitution, this depends on the language of the state’s constitution. States like California and Texas have crafted constitutional provisions by which they leave their power to cities and counties under what’s called ‘‘home-rule’’ authority, unless they have established ‘‘general laws’’ which all cities and counties must then follow.

Unfortunately for local jurisdictions that disagree, California and Texas have both passed statewide ‘‘general laws’’ legislation mandating the extent to which local law enforcement should, or should not, cooperate with federal immigration agents.

On March 13, 2018 the Court of Appeals for the 5th Circuit reinforced that states have the power to determine local policies when it unblocked most of SB 4 (the one exception is that local officials will not face penalties for exercising their free speech rights in speaking out against laws like SB 4). Attorneys for the local Texas jurisdictions are filing a petition for rehearing en banc.

Likely, however, the debate on what policy is going to make our communities the safest will have to continue being fought through the political process at the state level. The mid-term elections in November have never looked to be so contentious.

Sara Ramey is an immigration attorney and the executive director at the Migrant Center for Human Rights in San Antonio, Texas. The views in this article are not intended to reflect the official position of the organization.