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Prof. Geoffrey A. Hoffman, July 27, 2021
"In a series of bold actions, Texas has attempted to continue where the Trump administration left off in terms of immigration enforcement. These attempts recently have included threats to build a border wall, the devotion of space in state jails to immigration violators, and the use of the arrest power against immigrants under the theory of trespass. The relationship between state, municipal, or local enforcement and the federal government’s authority to do so is legally complex. But one thing is clear, the states do not have the power to enforce immigration law in the expansive ways Texas is attempting. To allow the use of state power in this way is to give tacit permission to a state’s illicit activities and should be reigned in by the federal government.
The limits of state power were outlined by the Supreme Court in the 5-3 decision in 2012, Arizona v. United States. There, the high court rejected 3 out of 4 attempts by the state to take it upon itself to enforce the federal immigration laws. Those included making it a state crime to reside in the country without legal permission, to work in the country without federal authorization, to permit local law enforcement to arrest without a warrant based on probable cause of unlawful presence. The only provision that was allowed by the Supreme Court required state officials to inquire into and verify the legal status of individuals who were detained or arrested during lawful stops.
Other legal authorities set forth the outer bounds of state immigration enforcement. For example, in the Immigration and Nationality Act, states and municipalities can enter into agreements with the federal government where they will be delegated certain enforcement actions. The so-called 287(g) program requires the local partner to sign a memorandum of agreement, which defines the scope, duration and limits of the delegation of authority. Most importantly, the officers must pass background checks, have knowledge of immigration laws, and be willing to submit to supervision by the Immigration and Customs Enforcement agency. A review of the ICE website reveals there are a series of county sheriffs which have signed such memoranda of agreement but not the state of Texas itself, as a whole and many counties have refused to participate.
In addition to the limits of federal judicial opinions as well as 287(g), the Immigration and Nationality Act itself specifically provides for the limits of activities of immigration officers in making arrests and enforcing the immigration laws. In section 1357, Title 8, and accompanying federal regulations, the arrest power is given to “any officer or employee” of the federal immigration service under certain proscribed circumstances. Importantly, there is a geographic limitation “within a reasonable distance” from any external boundary, which has been interpreted to mean within 100 miles of the border. These specific provisions, applicable to federal officers, give credence to the argument that the same power cannot be applied to state officers without treading on the Supremacy Clause, violating due process, and giving rise to a cause of action under federal preemption.
Other examples of impermissible local immigration enforcement are municipal ordinances and efforts by localities to penalize immigrants in their interactions with private actors. These attempts have been routinely struck down by courts. The Farmer’s Branch case is a good example where the locality attempted to penalize landlords for renting to immigrants under certain conditions. The Fifth Circuit in the Farmer’s Branch case declared the ordinance unconstitutional. In 2014 the Supreme Court declined to review the Fifth Circuit’s decision in that case.
The most publicized example of state law in Texas relating to immigration regulation is SB4, challenged at every level by immigration advocates. SB4, which is now largely in force, defines the outer limits of what the courts have allowed in terms of state enforcement in Texas. The law was largely upheld by the Fifth Circuit and prevents sheriffs, police chiefs, and other officials from prohibiting local law enforcement from communicating with ICE. Local law enforcement officers are not required to ask about immigration status, they just cannot be prevented from communicating with ICE. The Fifth Circuit had free speech concerns with SB4 and struck down the portion of the law the impinged on the First Amendment. Officials can speak out about their opinions in they wish if they think that asking about immigration status is a practice which harms public welfare and safety. Local officers also cannot hold anyone longer than required to inquire about their status, and cannot arrest someone on that basis alone.
Given these examples of Farmer’s Branch, SB4, and the Supreme Court precedents in this area, we know what states can and cannot do with respect to immigration enforcement and regulation. The state of Texas’ recent encroachment on this federal authority goes beyond the limits imposed by the courts.
This incremental usurpation of the federal power over immigration enforcement by the state of Texas is surely a welcome sign to some. The Trump hangers on and others who want to see a crackdown against immigrants certainly are pushing for as many actors as possible to push out immigrants who they see as the appropriate scapegoats for all societal ills, including the cause of disease, drain on the fiscal well-being of the state, or a source of crime. All these reasons, of course, have been disputed in studies by academic researchers, disproven and called into question. Nevertheless, the demonization of immigrants and their supposed deleterious effects remain the calling card of the far right.
All of these considerations can be interpreted in light of the decision reached just last week of Judge Andrew S. Hanen, presiding over a case bought years ago and now just being decided in the Southern District of Texas. The state of Texas has a lot to learn from reading Judge Hanen’s 77-page decision on DACA. While Judge Hanen comes out against finding the original 2012 DACA program legal, his decision recognizes the substantial reliance interests of those DACA recipients. He does not invalidate the current recipients’ DACA lawful presence or employment authorizations but instead stays his decision pending appeal and remands the DACA program to DHS to make adjustments to the program. Such an outcome was necessitated also by the Supreme Court’s 2019 decision in Board of Regents v. DHS in any event.
Judge Hanen’s decision can be read as a further corrective to the state’s overbearing actions against immigrants in a further sense. By setting forth the limits, as the judge sees it, to federal immigration policy and programs, he is implicitly reining in the federal government and by extension the states too. By the same token, the states must be viewed as similarly limited. If the federal government as the exclusive immigration enforcer is so limited, the states’ role must be even more circumscribed. The moral of the story is that perhaps a conservative district judge can teach a conservative state legislature and governor a much needed lesson.
Geoffrey A. Hoffman is the Director the University of Houston Immigration Clinic. This post is written in his individual capacity."