By Lisa Soronen, executive director, State and Local Legal Center

It is not just the President who wants to curtail sanctuary jurisdictions—states are getting in on the action too. Unsurprisingly, local governments are pushing back.

On May 7, 2017, Governor Abbott signed SB 4 into law in Texas. Among numerous other things, it requires local governments to honor Immigration and Customs Enforcement (ICE) detainers, punishable by a Class A misdemeanor.

Many cities and counties don’t respond to warrantless ICE detainers because numerous courts have held that doing so violates the Fourth Amendment. Last month a federal district court concluded that to the extent President Trump’s sanctuary jurisdictions executive order requires honoring warrantless ICE detainers “it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.”

Concerned that local governments won’t comply, Travis County and Austin in particular, Texas has sought a declaratory judgment that SB 4, which will go into effect on September 1, 2017, is constitutional. Texas argues local governments must comply with ICE detainers because under an April 2, 2017, policy an immigration officer must determine that all ICE detainers are supported by probable cause that a person is removable and must be accompanied by a warrant signed by an ICE immigration officer.

While none of the parties sued have had time yet to respond to the Texas complaint undoubtedly they will argue that the Fourth Amendment requires that a warrant be signed by a judge not an ICE immigration officer and that forcing local governments to comply with ICE detainers violates the Tenth Amendment.

Texas also argues that SB 4 isn’t preempted by federal immigration law and wasn’t enacted with a discriminatory purpose in violation of the Fourteenth Amendment Equal Protection Clause.

El Cenizo and Maverick County are seeking a declaratory judgment SB 4 is unconstitutional. In their complaint, these local governments note that ICE detainer requests aren’t supported by warrants issued by a judge and argue that forcing local governments to comply with them violates the Tenth Amendment.

The El Cenizo and Maverick County complaint also objects to other provisions of SB 4:

This law authorizes the Attorney General of Texas to file criminal charges, remove public and appointed officials from elected office and to impose civil penalties of up to $25,000 per day for entities the AG determines are “non-compliant”. In a nutshell, the law directs the AG to take enforcement action against any individual public official or entity that the AG deems “hinders the enforcement of federal law.” This places local government officials and entities, and the State of Texas itself, at the complete mercy of federal officials and their determinations and strikes at the heart of established principles of the Tenth Amendment and the Due Process clauses of the Firth and Fourteenth Amendments of the United States Constitution. 

Recently, numerous other states have passed or vetoed legislation regarding sanctuary jurisdictions and complying with ICE detainers more specifically.