//  8/31/17  //  Commentary

Yesterday, Judge Orlando Garcia enjoined a number of features of SB4, the Texas anti-sanctuary cities provision that was to go into effect on September 1.  The injunction will undoubtedly be appealed to the Fifth Circuit. SB4 is notable for two reasons. First, it requires local officials in Texas to become adjuncts of the federal immigration authorities. And second, it punishes local officials, through quasi-criminal fines and the threat of removal from office, if they “adopt, enforce, or endorse a policy” or act in a manner that “materially limits the enforcement of immigration laws.” Importantly, Judge Garcia rejected both efforts, and for good reason.

As to the first, SB4 raises an important question: Can a state that is otherwise constrained in its own authority over immigration order local government officials to do what neither the state nor the federal government can do directly? Under existing Supreme Court precedent, federal immigration officials cannot order local police to spend money, allocate resources, or provide personnel to enforce federal law—this would be the unlawful commandeering of local officials under the Tenth Amendment. So too under existing precedent, the state of Texas cannot spend money, allocate resources, and provide personnel to create its own parallel immigration enforcement authority—that power is generally reserved to the federal government except in limited circumstances. SB4, however, compels local officials to enforce federal law despite these twin structural limitations on the location of immigration enforcement.      

Judge Garcia did not analyze the issue in precisely these terms, but it is implicit in his holding that the plaintiffs are likely to succeed on the merits of their claim that a significant part of SB4 is preempted by federal law. As Judge Garcia recognized, SB4 is an attempt to create a state immigration enforcement apparatus by leveraging the state’s plenary authority over its political subdivisions. Localities are ordered to comply with state law but only as a proxy for the enforcement of federal law. There is a bootstrapping quality to all this, and Judge Garcia understood that SB4 upsets the vertical separation of powers, which permits state (and therefore local) enforcement of immigration laws only under limited and tightly regulated circumstances.  As Judge Garcia wrote: “Texas cannot—through state law—expand the limited circumstances under which local enforcement officials may perform the functions of immigration officers.”

Judge Garcia also rejected the enforcement features of SB4 as a violation of the First Amendment and due process rights of local government officials. SB4 is an example of “punitive preemption”—it not only overrides local policies and ordinances to the contrary, it imposes civil penalties and quasi-criminal fines and threatens removal from office if local officials “endorse” a policy that “materially limits” the enforcement of federal immigration laws. SB4 is among a spate of recent state laws that back-up their preemptive effect with significant penalties for local officials who do not comply. Punitive preemptive laws seek to deter local officials from—and punish cities for—passing ordinances that are in conflict with state law.

Judge Garcia’s First Amendment analysis reaffirms local officials’ rights to speak and advocate without threat of reprisal. Texas argued that the state can regulate local officials’ speech when they act in an official capacity—essentially asserting that anything that local officials advocate or “endorse” is government speech. Judge Garcia rejected that characterization and rightly so—it would have left local officials vulnerable to removal for almost any act or expression that deviated from Texas’s stated line. The judge noted that state officials had repeatedly threatened local officials with reprisal for both advocating and adopting sanctuary city policies. Travis County (the home of Austin) in particular has been the target of legislative and executive ire. Governor Abbott threatened the Travis County Sheriff with imprisonment, and the state has withheld monies from the county under grants unrelated to immigration. Judge Garcia’s due process holding that the “materially limit” language in SB4 is unconstitutionally vague thus provides much-needed protection for embattled local officials.    

Punitive and retaliatory preemption is a significant and growing problem for local government officials, and not just in Texas. What we are seeing with statutes like SB4 is a full-out attack on American cities, mostly by red-state legislatures unhappy with blue-state municipalities. There are limited direct means to protect a sphere of city autonomy in the face of such hostility. The Constitution does not protect a right of local self-government and state law constitutional “home rule” provisions are often narrowly interpreted.

Judge Garcia’s opinion suggests a number of ways forward. Cities can leverage federal law in their disputes with states, and anti-commandeering principles can be brought to bear even if not directly applicable. So too local officials can assert First Amendment and due process rights when states overreach.

Without a concerted effort to remake the city-state relationship, however—perhaps through a rejuvenated political movement to protect home rule—these constitutional and statutory protections will often fall short. Cities need to be recognized as constitutional actors in their own right, worthy of protection and capable of self-determination. Texas cities received a reprieve with Judge Garcia’s decision, but it may be a temporary one. 

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