//  5/4/17  //  Commentary

Under President Trump, the federal government has declared total war on undocumented migrants. Embracing cruel, arbitrary, and costly tactics, it has deployed federal agents throughout the land to rip apart migrant families and maximize deportation rates. To fuel this fire, Trump has demanded a vast expansion in the immigration workforce and the construction of new prisons. In his view, there is little to be said for humanitarian values, respect for foreign neighbors, the needs of American business, or basic due process rights.

All that matters is expelling migrants—the more the better, no matter the cost.

Appalled by Trump’s policy, many cities and states have #resisted. Moved by respect for human rights and a desire to create safe communities—where people work with local police, instead of hiding from them—these jurisdictions have officially limited the extent of their cooperation with federal immigration enforcement. As the Mayor of Boston memorably declared: “To anyone who feels threatened today, or vulnerable, you are safe in Boston. We will do everything lawful in our powerful to protect you. If necessary, we will use City Hall itself to shelter and protect anyone who’s targeted unjustly.”

Recently, Trump’s own executive order threatening sanctuary cities with a loss of federal funds was enjoined by a judge in San Francisco. (Niko Bowie analyzed the ruling here; Joshua Matz analyzed Trump’s confused response here.) That decision helped shield them from continuing attacks by Trump and his Justice Department.

But now some sanctuary cities face another threat much closer to home: their own state governments. It will come as no surprise that the Lone Star State has led the way in seeking to shut down local efforts at protecting the dignity of undocumented migrants.

Last week, the Texas House passed SB 4, a bill that outlaws sanctuary jurisdictions in Texas. The Texas Senate can now pass the same version, clearing it for the Governor’s signature, or request a conference committee with the House to hash out differences.

SB4 is a jaw-dropping piece of legislation.  Among other things, it has these effects:

  • Prohibits jurisdictions in Texas from adopting any rules, orders, ordinances, or policies that prohibit enforcement of state and federal immigration laws.
  • Denies state grants to any entity for the following year after a court finds that the entity adopted such rules or policies or prohibited the enforcement of immigration laws.
  • Makes local police officials and leaders subject to a Class A misdemeanor conviction if they don’t cooperate with federal authorities and honor requests from immigration agents to hold noncitizen inmates subject to deportation.
  • Provides penalties for entities in violation of the provision that begin at $1,000 for a first offense and climb to as high as $25,500 for each subsequent infraction.
  • Allows police officers to question a person’s immigration status during a detainment, as opposed to being limited to a lawful arrest.
  • Allows elected officials to be removed from office through a civil proceeding if they violated the provisions of the bill

There’s a lot to say about SB4. I’ll offer just a few quick reactions.

To start, in many respects, this law is just as despicable as the blunderbuss federal threat to punish sanctuary cities. Like Trump’s executive order, it rests ultimately on support for a xenophobic, anti-immigrant, and ultimately prejudiced, unwise, and inhumane policy. And I’m not talking about ordinary “support” for that policy, but rather a zealous, fervent commitment to deporting people that bends and breaks the normal bounds of local control, producing extraordinary laws like SB4.  While Trump’s executive order was arguably worse—since it violated limitations of our federal system and hid behind a silly pretense of having no legal effect—SB4 flows from the same impure motives.

Moreover, as Richard Schragger has insightfully explained, laws like this one must be understood as part of an emerging war by conservative states on progressive cities:

The last few years have witnessed an explosion of preemptive state legislation challenging progressive local ordinances across a multitude of policy areas.  The Trump campaign’s anti-urban rhetoric did not create this backlash against the cities—cities were already being targeted by hostile state legislatures.  But the Trump administration continues to fan anti-city flames.  American cities are under siege and state legislators have become increasingly unrestrained.

This battle has already spread to gun policy, transgender and LGBT rights, and immigrant protections, and there’s every reason to anticipate it will expand. Indeed, it may soon become one of the most important legal stories of our generation. And as Schragger explains, “The response to this challenge is a reinvigorated campaign on behalf of city power—an articulation of federalism all-the-way-down.  Cities are currently the most innovative locations for progressive regulatory policy.  But they cannot pursue those policies unless they are freed from state constraints.”

These developments demand a renewed appreciation of the basic truth that cities and municipalities are not invisible to the Constitution.  As Judge David Barron of the Court of Appeals for the First Circuit noted in an insightful essay about my work, the vital role of cities in our political and constitutional order runs through a series of landmark Supreme Court decisions. As Judge Barron remarked, the ultimate question is “whether the city will be viewed, in the eyes of the law, as a democratic polity in its own right, entrusted to exercise public power so as to serve the needs of its own residents and to identify solutions to the problems that confront society more broadly.” In my view, the answer must be “yes.” While the Supreme Court has been haphazard in its recognition of city rights, especially when asserted in opposition to states, our age of urbanization calls for a reinvigorated constitutional vision of the rights and duties of cities.

In thinking about laws like SB4, we must therefore resist calls to view sanctuary cities as lawless outliers being corralled by the states. Rather, we must understand those cities and localities as creative and relevant actors in the constitutional order, exercising power in furtherance of our democratic society as they comprehend it and wish it to be. This isn’t to say cities can get away with anything and everything—most obviously, they can’t experiment in violating the rights of their residents—but it simply isn’t realistic in 2017 to view cities as wholly unprotected against their own state governments. There is ample precedent and principle supporting the view that cities enjoy constitutional stature.

SB4 thus raises profoundly important legal questions.  For example, may a state compel a city to go “pedal to the metal” on immigration enforcement even when some federal immigration policies, like the still-operative DACA program, mandate that unrelenting enforcement be leavened by discretion and humanitarian concerns? Is it consistent with aspects of local control contemplated by parts of federal immigration law for states to override all local variation, instead demanding that localities follow state visions of what, exactly, it means to comply with federal immigration efforts? As the Supreme Court recently held in Arizona v. United States (2012), “a conflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.”

To be sure, Congress can’t trample the right of each state to structure its own internal system of governance as it sees fit vis-à-vis a “one-size-fits-all” approach mandated from DC.  In general, a state is certainly free to limit the autonomy of its local units across the board, governing whole swaths of matters from the center.  

But there’s a fundamental distinction that must be recognized here.  The Tenth Amendment forbids Congress from telling states that they can’t pass a neutral rule of general applicability that reserves issues like natural resource, employment, or health insurance policy to a state’s central government.   That said, Congress arguably has far greater powers to intervene in matters of internal state/local governance affecting either (i) a dominantly and historically federal issue like immigration or (ii) the treatment of discrete and insular minorities.  To the extent Congress has in fact done so here, laws like SB4 improperly interfere with the federal plan.

And there are still more questions to ask about SB4.  For instance, by its terms, the law reaches not only subdivisions of the State of Texas, but also private institutions of higher education (as well as public schools). This infringement on private actors may well raise grave First Amendment concerns relating to freedoms of speech and association: imposing massive state penalties on private actors for a perceived failure to fully comply with (nominally discretionary) federal immigration enforcement requests most certainly burdens constitutionally protected interests.  More broadly, using the threat of state sanction to compel schools to seek out and deport any undocumented migrants (and their children?) may interfere not only with historical ICE practices relating to educational institutions, but also with constitutionally protected interests in education under cases including Plyler v. Doe (1982), which struck down a Texas law withholding funds from local school districts that educated undocumented migrants. 

Indeed, a defining theme of many Supreme Court decisions relating to universities, including recent affirmative action decisions, is the notion that even public universities (private colleges and universities would be an even stronger case) are entitled under First Amendment principles to substantial autonomy in setting their own educational goals, including goals bearing on the composition and diversity of their student bodies.

While SB4 doesn’t directly violate Plyler or these other decisions, it has a similar effect by making undocumented students fair game for the most aggressive CBP and ICE enforcement the moment they move from K-12 to the next educational level, including vocational schools and community colleges and junior colleges.  In today’s world, it dooms undocumented youngsters, including many who were brought to the U.S. as innocent little kids, to the status of a permanent underclass to make it unsafe for them to go to school—just as, when Plyler was decided, it would have doomed them to such a secondary status to make K-12 either unaffordable or dangerous for them to access.

Finally, due in part to its vagueness, SB4 is objectionable because it will unquestionably exert a powerful in terrorem effect on public officials—acting not just within but also outside the scope of their official duties—in even discussing questions relating to immigration policy and compliance with federal officials. That may be especially true, and especially damaging, in university settings, where school administrators and faculty may fear terrible punishment if they even seem to suggest disagreement with the most harsh and inhumane aspects of Trump’s war on undocumented migrants.

As drafted, SB4 only exacerbates these concerns: parts of the bill target “adopt[ing],” “enforc[ing],” or even “endors[ing]” a “policy”—whether “informal” or “unwritten”— of not enforcing federal immigration laws or discouraging such enforcement through “consistent actions.”  Noncompliance with these broad and ill-defined rules can result in potentially crippling liability, with civil fines that escalate steeply and mercilessly.

Ultimately, SB4 is a terrible law.  It may also be an unconstitutional one.  And it’s a disturbing sign that conservatives will seek to stamp out dissent wherever they may find it, especially in progressive cities that are fast becoming this nation’s lifeblood.

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Should Vulnerable Detainees Be Released?

3/27/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss a lawsuit in Seattle, Dawson v. Asher, requesting that several vulnerable people in immigration detention be released. They discuss the legal standard for detention, why detention centers are particularly dangerous places, and what courts will be balancing when they consider these requests for release. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Blame Game

2/18/20  //  Commentary

The administration often tries to foist blame on the courts for its politically unpopular policies--or to have the courts effectuate its politically unpopular policies for the administration.

Leah Litman

Michigan Law School