WORKING in tandem with the Trump administration to curb “sanctuary cities”—localities that refuse to cooperate with federal agencies to deport illegal immigrants—some state governments are cracking down on their own cities. But late in the evening on August 30th, Judge Orlando Garcia, from the District Court for the Western District of Texas, in San Antonio, signalled that the federal courts are keeping watch over how these battles play out.
In a 94-page ruling, Judge Garcia put Texas’s plans to crack down on sanctuary policies on hold pending a full judicial reckoning. Senate Bill 4, which Greg Abbott, Texas’s governor, signed into law in late May, was the fruit of a contentious debate in the Texas legislature featuring threats from Matt Rinaldi, a Republican lawmaker, to call in Immigration and Customs Enforcement to move on protesters. This helped provoke a brawl in the chamber, followed by Mr Rinaldi reportedly telling a Democrat who had shoved him that he would “shoot him in self-defence.”
The legislation inspiring these fisticuffs did a number of things, many of which will not take effect as planned on September 1st. Most significantly, Judge Garcia ruled that Texas cannot force local police to hand undocumented immigrants over to federal immigration officials or punish officials with fines and removal from office for “endorsing” other views. There is “overwhelming evidence”, the judge found, that in Austin, Dallas, El Cenizo, Houston and San Antonio, as well as in El Paso county—with a total population of over six million—Senate Bill 4 would cause “adverse economic consequences” and “erode public trust”, making “many communities and neighbourhoods less safe”.
While giving credence to the “reservoir of knowledge and experience possessed by local officials”, Judge Garcia acknowledged that the legislature is free to ignore cities’ wishes in setting rules for the state as a whole. A federal court “cannot and does not second-guess the legislature”, he wrote. But Texas “may not exercise its authority in a manner that violates the United States Constitution”. By limiting the rights of free expression of local officials with a ban on their ability to “adopt, enforce, or endorse a policy” that “limits the enforcement of immigration laws”, Judge Garcia wrote, Texas seemed to violate basic principles of the First Amendment. “Free and open debate on matters of public concern is a cornerstone of democracy”, he wrote, “and the core value protected by the First Amendment”. Local officials are charged with taking part in “open, robust debate” on immigration issues, and Senate Bill 4 shuts that debate down.
One of the most controversial provisions of Senate Bill 4, however, did not, in Judge Garcia’s eyes, threaten constitutional norms. This is the requirement that police “ask arrested or detained individuals about their immigration status” when pulling them over. The plaintiffs argued that this rule violated the Fourth Amendment’s ban on unreasonable searches and seizures, but Judge Garcia disagreed. As long as a police officer does not detain suspects for longer than necessary, there is no problem with checking whether they are in the country legally.
Mr Abbott pledged to challenge the ruling at the Fifth Circuit Court of Appeals in New Orleans. “Today’s decision makes Texas’s communities less safe,” he said. “[G]ang members and dangerous criminals” are the beneficiaries of the ruling and miscreants “will be set free to prey upon our communities”. Mr Abbott said he is “confident Texas’ law will be found constitutional and ultimately be upheld”.
Whether or not that prediction proves accurate, temporarily scuttling the Republican Texas legislature’s attempt to impose its will on largely Democratic-controlled cities marks another strike against Donald Trump’s long-standing promise to punish sanctuary cities. In April, a district judge in California said the administration’s threats to cut off funding to Santa Clara and San Francisco violated the constitution. Chicago and Los Angeles, two of the nation’s biggest sanctuary cities, are also suing for their right to shield undocumented residents from the reach of federal authorities. Ultimately, the Supreme Court may be called on to resolve this constitutional flashpoint of the Trump presidency—a duty that may prove all-too-familiar for the nine justices. In the meantime, Judge Garcia’s ruling may lessen the anxieties of undocumented people who have lost their homes or their livelihoods in hurricane Harvey.