The Challenge to SB 4

Anti-SB 4 protesters at Greg Abbott's office on May 1 (Photo by Jana Birchum)

In an act of exceptional cowardice, Gov. Greg Abbott signed the state's harsh "sanctuary cities" bill into law Sunday evening via Facebook video, giving no public notice beforehand so as to prevent protesters from interfering with the passage of one of the country's most extreme anti-immigrant laws ("Abbott Signs 'Sanctuary Cities' Bill Into Law," May 7). As inescapable as Abbott's signature are the anticipated forthcoming lawsuits challenging Senate Bill 4's shaky constitutionality.

But then Monday, in a surprising and highly unusual move, the state of Texas beat those lawsuits to the punch, filing suit in an Austin federal court against the city, Travis County, Sheriff Sally Hernandez, Mayor Steve Adler, the city's council members, and the Mexican American Legal Defense and Educational Fund (MALDEF) to "uphold the constitutionality" of SB 4 ("In Pre-emptive Attack, Texas Files Suit Against Austin Over 'Sanctuary Cities'," May 8). The suit isn't stopping advocacy groups from planning litigation against the state to halt a law they see as racist and unjust. In fact, on Monday the League of United Latin American Citizens, Maverick County, and the city of El Cenizo, a small border town populated with many undocumented immigrants, sued Texas, claiming the new law violates the U.S. Constitution. Other groups and cities plan to follow suit.

"We certainly don't want 'walking while brown' to become reasonable suspicion," said Sen. Sylvia Garcia, D-Houston, on the Senate floor last week before her Republican counterparts gave SB 4 the final go-ahead. "And, frankly, that is what will happen with this legislation."

Even before the upper chamber directed SB 4 to Abbott, there were rumblings of a constitutional challenge; however, groups aren't announcing litigation prior to officially filing. In a press call, Terri Burke of the ACLU of Texas called SB 4 a "shameful" invitation to racial profiling of Latinos, Asians, or anyone who looks "foreign." Her colleagues in Arizona were among the parties that sought to block that state's like-minded SB 1070. "We don't announce we're going to sue until we file the lawsuit, but we and our partners are really studying the bill," said Burke. "We will be ready as necessary when this is signed into law."

MALDEF Southwest regional counsel Marisa Bono hints that her organization is similarly ready for a legal challenge. "This bill is replete with problematic provisions that could potentially be unconstitutional," Bono told the Chronicle. "I'm so disappointed in our leadership for taking us down this path, but now we at MALDEF are ready to continue the fight in court." Bono cites limits on free speech, due process, and vagueness among the constitutional issues. Additionally, the U.S. Constitution places the power of creating and exercising immigration law in the hands of the feds, preventing local law enforcement authorities from acting as immigration agents.

Terri Burke

While many similarities are being noted between SB 4 and SB 1070, it's worth noting that the Arizona law initially required law enforcement to demand proof of immigration status, while SB 4 just prohibits police chiefs from stopping their officers from doing so. But that distinction may be irrelevant considering the vague wording in SB 4, says Bono: In mandating police chiefs and sheriffs "cooperate" with federal immigration policy or face penalties – without offering a clear definition of what that cooperation entails – the law opens up the potential for the federal government to force local police to inquire about immigration status. "Under this bill, local law enforcement is completely susceptible to whatever the federal government decides to do," says Bono. "And if we know anything about the [Trump] administration and its immigration enforcement efforts, it's that it's unpredictable and doesn't give due process."

While the U.S. Supreme Court struck down a trio of provisions in SB 1070 in 2012, it upheld the highly disputed "Paper Please" portion, saying it needed evidence that it conflicted with federal immigration law. A 2016 settlement gutted SB 1070 of the section that forces police to ask about citizenship status. But Bono believes SB 4 won't necessarily share that same fate. She says the 5th Circuit Court of Appeals, which hears Texas cases, has warned against laws that require local officials to make determinations about immigration status. "Lan­guage in 1070 is not identical to SB 4," said Bono. "So I don't think it's a necessary conclusion that a trial court or appeals court or even the Supreme Court would find the same thing here."

The evidence that SCOTUS previously needed is now available. The ACLU of Arizona has been documenting the impact of SB 1070 prior to the 2016 settlement, finding "clear or potential constitutional problems" in more than 75% of (mostly minor) traffic stops reviewed in Tucson from 2014-15. Most stops lasted one to two hours; some up to three. "There are repeated cases of police not only asking for the immigration status of the driver but also the passengers, and unlawfully prolonging stops to get border patrol to come and take everyone away," said Burke, who believes the same could happen in Texas.

MALDEF recently released figures based on the U.S. Census highlighting the groups that would be subject to widespread police profiling and harassment due to SB 4: Lati­nos, Asian Americans, or Arab-Americans make up 44% of the total Texas population, and nearly 54% of Texans under the age of 18. Adding in the 11.5% of African-Ameri­cans, that's a majority of all Texans and two-thirds of the state's minors. "This [law] has very real consequences not only for immigrants but for all Texans. I can tell you I do not have proof of my citizenship status on me right now," said Bono. "And that is the reality Texans have to consider now every time they walk outside the door."

Individual cities and counties also have standing to file suit against SB 4 on behalf of straining local law enforcement resources, interfering with how they pursue crime, and financial impact. The money spent by Texas county jails for complying with ICE detainer requests totaled $61 million in 2016. In Travis County, that figure reached $7.15 million, according to the American Immigration Lawyers Association.

Austin City Council Member Greg Casar – whose Northeast Austin district is home to the city's highest concentration of immigrants – said he's "coordinating" with cities across the state to plan resistance to SB 4. "I believe we have no responsibility to follow an unconstitutional law," said Casar, who helped lead a sit-in protest at Abbott's office against SB 4 last week. "It is inevitable that you will see this summer cities and counties suing over the unprecedented overreach of this bill. The state wants to remove duly elected public officials in cities for trying to defend public safety of their people."