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Legal Experts Take Issue With Comparisons Between Texas, Arizona Immigration Laws

May 15, 2017 (3 min read)

Jason Buch, San Antonio Express-News, May 14, 2017 - "When Gov. Greg Abbott this month signed a bill banning so-called sanctuary cities in Texas, he said the “key policies” in the bill have “already been tested at the United States Supreme Court, and approved there.”

Abbott was referring to a similar Arizona law that requires police to ask about immigration status under certain circumstances. According to the governor’s office, the fact that the Arizona law survived a constitutional challenge in 2012 and remains on the books is evidence that Texas’ law, which is already facing a legal challenge, will be found constitutional.

The Arizona law, Senate Bill 1070, passed in 2010, was considered one of the most restrictive in the country at the time and created criminal penalties for being in the country without permission, which is not a federal crime. The Supreme Court struck down most of its provisions, ruling that they were “pre-empted” by federal law. However, the court ruled that the Justice Department hadn’t shown that the provision addressing police stops was unconstitutional.

The Arizona law carries civil penalties for government officials and agencies who don’t comply with the provision that survived the Supreme Court.

Texas’ SB 4 comes at the issue of police inquiries about immigration status from a different direction. The new law creates a $25,000 daily fine for repeat offenders and allows the attorney general to remove officials who enact policies preventing police from inquiring about immigration status.

The governor’s office has said that because the Texas law carries no requirement to ask about immigration status — it simply punishes officials who prevent police from asking about immigration status — it’s squarely within what the Supreme Court has defined as constitutional.

The Texas law “does not require mandatory immigration checks, it simply prohibits local sheriffs from banning law enforcement officials from inquiry into the immigration status of persons already lawfully detained,” Abbott spokesman John Wittman wrote in an email.

To say that the Arizona provision on investigating immigration status was declared constitutional is stretching what the Supreme Court ruled, said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.

“What the Supreme Court said … was that at the time the case came to the Supreme Court, it could not make a decision about pre-emption because it wasn’t sure how to read the statute,” Perales said. “So the court said it wasn’t going to strike down that provision, but that it would sort of leave it for another day. If anybody wanted to bring a future claim after the law went into effect, the court left that door open. The court left the door open to a future lawsuit.”

MALDEF reached a settlement in which the Arizona attorney general clarified that officers cannot extend traffic stops or detentions to investigate immigration status and may choose not to investigate immigration status in certain circumstances.

“I know from reading SB 4 that it’s some kind of attempt to avoid the constitutional problems of SB 1070, although I don’t think they did avoid them,” Perales said. “It is obvious that SB 4 does not require immigration inquiries. It frames the discussion of immigration inquiries in terms of local jurisdictions not being able to prevent officers from making those inquiries. So SB 4 is approaching the issue from a different angle.”

The Arizona law’s requirement to ask about immigration status is not as expansive as the governor’s office is portraying it, said Michael A. Olivas, the William B. Bates Distinguished Chair of Law at the University of Houston Law Center. The Arizona law required officers to ask about immigration status “where reasonable suspicion exists that the person is an alien who is unlawfully present.”

“Even the part that survived the Supreme Court would not have allowed any police officer who saw a Mexican on the street to detain them and ask for papers. There had to be reasonable suspicion, it had to be during a lawful stop, during arrest or detention,” Olivas said. “There was always an assumption that if a police officer arrested you and had probable cause, they could investigate further, including determining your immigration status.”

“Not every state wants to do that because so many of them understand that it’s a fool’s errand for doing so because … it drives crime deeper and cordons off entire communities,” he added. “So I think the question isn’t whether or not this is constitutional. That will have to be tested in the courts. I think the question is whether this adds anything useful to the arsenal of the state.”"

Prof. Michael A. Olivas