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Prof. Geoffrey A. Hoffman, May 9, 2017 - "The anti-sanctuary cities and campuses bill, SB-4, was signed into law on May 7, 2017. Most importantly, state laws are subject to federal preemption especially where there is a pre-existing structure in place for providing enforcement of federal laws by state officials. In fact, such a statutory federal structure already exists. It is Section 287(g) of the Immigration and Nationality Act (INA), which provides the mechanism whereby state law enforcement can be deputized to act as federal law enforcement officials. In addition, there are other federal laws which may “occupy the field” which already govern information-sharing between state and federal officials. See 8 USC § 1373. The new law also makes it mandatory to comply with ICE “detainers” signed by ICE officials and not a judge or magistrate. The new litigation brought by the governor seeking a declaratory judgment will have to grapple with the many federal district court cases that already have made pronouncements about the unconstitutionality of such ICE detainers. Under certain cases state officials have been sued and plaintiffs have received monetary damages due to detainers’ improper use.
First, consider INA 287(g). The section provides that localities may “voluntarily” enter into a memorandum of agreement (MOA) with the federal government. Then, the state or local entity receives delegated authority by the federal government to enforce the immigration laws within their jurisdictions. Part of 287(g) provides for training and oversight of the state officers so they can properly execute the federal immigration laws. Where is the oversight and training in SB-4? The SB-4 framework does not have any safeguards, such as any training by federal officials, among the other aspects of the federal-state partnership set out in the 287(g) framework. The SB-4 statute says state officers cannot be prohibited from asking about someone’s immigration status for one who is lawfully detained or arrested. It also specifically provides that state entities cannot have a policy which “prohibits or materially limits” the enforcement of immigration laws (by their own state officers).
Federal preemption does not exist only when a state law is directly contrary to or a violation of a particular federal law. Rather, federal preemption can be implied in a state law’s structure or implementation. In the present litigation, there will be an issue of federal preemption. Even if the state law is not expressly violating federal law, the state law can be struck down where it is either an obstacle to the implementation of federal law or it is in conflict with federal scheme in some way. If the defendants to the current lawsuit are able to show that federal immigration laws “occupy the field” then a state law may be impliedly preempted even if not directly contrary to federal law on its face.
SB-4 explicitly prohibits inquiry into a crime victim or witness’s immigration status, but this is a non-exception. The following is a huge loophole which eviscerates this important protection: where the inquiry is necessary to “investigate the offense” or provide the victim or witness “with information about federal visas” designed to protect individuals providing assistance to law enforcement. The problem with the law’s “exception” is that there is no guarantee or likelihood that anyone would self-identify to the officer as a “crime victim,” when they are stopped for a minor traffic violation, broken tail light, or other minor offense such as jaywalking. It may not be able for a person to understand or process the fact that he or she is a crime victim even in domestic violence cases, let alone traffic stops.
The exception swallows the rule in that it allows for people to be questioned presumably at the scene of a domestic violence or other crime scene about their status. Once questioned, this will create a severe chilling effect. Many times the victim or witness will not cooperate with law enforcement for the very reason that they are being asked about their immigration status. To the extent SB-4 frustrates persons from applying for U (crime victim) or T (trafficking) visas or under VAWA (Violence Against Women Act) the law may be preempted because it is truly an obstacle to allowing persons access to these parts of the INA. The mere fact of a facial “exception” for crime victims and witnesses is illusory.
The declaratory judgment federal court action also ignores another very problematic portion of SB-4: the inclusion of campus police in the range of state actors. The lawsuit discusses 4th amendment (unreasonable seizure) and 14th amendment issues (equal protection), but ignores other more salient constitutional problems that may arise in the context of enforcing immigration laws on college campuses. The new law could violate various constitutional guarantees, such as first amendment freedom of speech, freedom of association, and related issues including freedom of religion. The law does provide that hospitals and hospitals on campuses are excepted, but this does little to assuage the problem of enforcing federal immigration law on college campuses.
SB-4 has a provision that excepts application of the law to law enforcement “employed by a hospital” or an officer “employed or contracted by a religious organization during the officer’s employment with the organization…” However, nowhere does it say that peace officers who are not employed by a hospital or a religious organization are prevented from entering or otherwise inquiring about a person’s immigration status if they are in a hospital or religious setting. Again, the exception for hospitals or religious places does not really protect any one, just against questioning by contractors and law enforcement employed by these establishments.
Defendants in the declaratory judgment litigation will likely argue that even if SB-4 is “facially” valid, although they will not concede that it is, then the law may still be unconstitutional “as applied.” These types of “as-applied” challenges are possible but may be difficult where the law’s effective date is September 1st and so there are no current incidents or representative cases yet to illustrate the violations which may occur in the future. In an as-applied challenge, the court reviews the statute as it operates under real situations against particular putative plaintiffs or classes of plaintiffs. Despite the difficulty of proving an as-applied challenge, there are several scenarios which one could readily imagine which would illustrate just how SB-4 would be applied and how it would violate the federal constitution and the federal INA.
For example, if the statute - despite a nod to certain “exceptions” for its applicability - still operates in such a way to chill free speech, prevent crime victims from coming forward, prevent witnesses from reporting crime, necessitates or engenders racial profiling, or interferes with the federal scheme by operating in a way that would result in frustration of important federal policies then the as-applied challenge would be successful. Several hypotheticals could be used to illustrate the as-applied infirmities with the new law.
Imagine an immigrant who seeks legal advice from a law school that offers free representation to indigent clients those facing immigration issues. If the potential client is afraid to even enter onto the campus given the existence of SB-4 and its mandate and that location is the only place where the person can obtain legal aid then the right to access to counsel has been violated. The INA clearly provides that a person is guaranteed the right to be represented by legal counsel “of their choice” so long as it is not paid for by the government. The right to counsel is protected in immigration court under the Fifth Amendment due process clause and not the Sixth Amendment. This hypothetical is not in any way farfetched but all-too-real as many immigrants are without representation and often seek help from law school and other non-profits who might be housed in a law school or other university setting.
Imagine a student at a university who expresses concern or speaks out in a classroom setting about an immigration issue or their own immigration issue. If it becomes known from that exchange that the person is undocumented will they be frustrated from getting an education in that university if they are deservedly worried about another classmate notifying campus police that they are undocumented. Will they stop going to classes? Will they be worried that they may get a flat-tire on campus and be assisted by campus police, only to be asked about their immigration status and turned over to ICE? In Plyler v. Doe, the Supreme Court found that undocumented students had the right to attend primary and secondary schools in Texas without interference from the State. Should not the same be said for college and graduate students in Texas under SB-4?
Imagine an undocumented immigrant seeking care at a local hospital. Many in Harris County benefit from a so-called Gold Card, which can be obtained regardless of a person’s immigration status. If it is a child seeking care, would their undocumented parents be afraid to set foot in the hospital for fear of being asked about their immigration status. Remember that the prohibition against application of the law only applies to law enforcement employed or contracted by the hospital and it does not purport to ban implementation of the law to everyone who may be located at the hospital or medical facility. State police or other state officials could still enter onto hospital facilities. They could be investigating a putative crime or for some other reason ask anyone about their immigration status if stopped and suspected of a crime. For example, if a person is believed to be a trespasser at the hospital they could be stopped and questioned by outside law enforcement. Nothing in SB-4 prohibits non-hospital law enforcement from questioning such persons about their status.
In Arizona v. United States, the Supreme Court in 2012 considered the State of Arizona’s attempts in SB 1070 to enforce the federal immigration laws through various state law provisions. In that case the high court struck down 3 of the 4 provisions proposed by Arizona to regulate immigrants. Importantly, the court upheld the provision which allowed state officers to ask about immigration status upon reasonable suspicion that a person was unlawfully in the United States after a lawful stop. It should be emphasized that SB-4 is distinguishable even from Arizona’s strict law as SB-4 provides for no level of reasonable suspicion. A person merely has to be lawfully stopped or detained.
The requirement of reasonable suspicion is itself problematic because, as noted by the justices and the opponents to Arizona’s law, there is a very great danger of racial profiling. Both SB 1070 and now SB-4 provide on its face a prohibition against “discrimination” except to the extent permitted by the federal or Texas Constitution. Such a facial anti-discrimination may not be enough to immunize the law from constitutional review. Just as in the Arizona case, there is here the possibility of an as-applied challenge even if the particular provisions pay lip service to anti-discrimination. Even if asking about immigration status were considered facially valid it may not be unconstitutional as-applied, as the justices noted in Arizona v. U.S.
Consider also how SB-4 also goes beyond Arizona’s SB 1070 in its imposition of criminal/civil penalties and removal from office against state law enforcement officials who are found to violate the law. Arizona’s SB 1070 did not penalize law enforcement, but instead provided criminal penalties under state law for violations related to comparable federal immigration laws. Notably, all those provisions were struck down in the Arizona case. In SB-4 however the statute provides for a complaint procedure. The complaint may be filed by “any citizen” or anyone “employed by an institution of higher education” with the attorney general. If the local entity or campus police department is found to be in violation then it can be fined between $1000 and $1500 for the first violation and $25,000 for each subsequent violation. SB-4 also mandates removal from office for officials which violate the act. For violations of the detainer provisions, a criminal penalty Class A misdemeanor is imposed. Given the severe criminal and civil penalties threatened by this law it may be immaterial to a state law enforcement official that SB-4 does not require that anyone be asked about their immigration status. From the point of view of the state agency, if they are in doubt the assumption will now be that a person should be asked “just to be safe” since there is every incentive now built in to err on the side of enforcement and to avoid being branded a “sanctuary” jurisdiction.
SB-4 is on shaky ground considering that there are a number of decisions from courts finding that ICE detainers can be found unconstitutional as either an unreasonable seizure or a violation of due process. SB-4 places no limitations on ICE detainers, but instead mandates blindly and without an exception that they always be honored even though there is no question that the ICE detainers are not mandatory but voluntary requests to hold pending ICE custody. The language of SB-4 broadly requires state officials to “comply with, honor, and fulfill any request made in the detainer request provided by the federal government.” In a number of cases state agencies have been sued when they have held persons for overly long periods of time without a signed warrant issued by a judge or magistrate. ICE in its own internal documents have described their detainers as non-binding and having no legal force, but only a request. The attempt to make these detainers “binding” and to impose legal penalties and even state criminal liability would appear to be in conflict with the federal policy and the federal government’s own understanding and practice that they are non-binding.
MALDEF is in charge of defending themselves as a defendant in the present litigation. They may have been dragged into this litigation and will I am sure make many arguments to counter the constitutionality of the new law which goes into effect September 1st. Defendants have the ability to broaden the issues here and fully litigate the legality of SB-4. Just remember that any claims or counterclaims that may be asserted must be asserted if compulsory. FRCP 13(a). Counterclaims are either compulsory or permissive. Counterclaims that arise out of the same transaction or occurrence as the plaintiff’s claims are classified as compulsory. If compulsory under the federal rules then they MUST be asserted in the same lawsuit brought by the plaintiff. If not asserted, then the plaintiff may be able to argue that raising any of those issues in future would be forever barred under the principle of res judicata. The impetus therefore is strong to litigate this issue now and bring to bear all arguments."
Geoffrey A. Hoffman, University of Houston Law Center, director of the Immigration Clinic (institution for identification only). The views expressed are the author’s own and not necessarily those of the University’s or any other party.