Activist Judge Overrides the Will of the People
Legislative Update By: Shari Rendall
An activist judge blocked several key provisions of Texas’ anti-sanctuary law (SB 4) two days before it would take effect. (Law360, Aug. 30, 2017) In his 94-page ruling, Judge Orlando Garcia, a Clinton appointee, sided with pro-amnesty cities and activists (including the ACLU) finding the law was overbroad, vague, and unconstitutional. (Fox News, Aug. 30, 2017) If SB 4 was allowed to be fully implemented, it would have been one of the toughest anti-sanctuary laws in the country, keeping dangerous criminals off the street and ensuring law enforcement’s ability to fully cooperate with federal immigration officials. (See FAIR Legislative Update, May 9, 2017)
Judge Garcia acknowledged “the Court’s role is limited to determining the constitutionality of a statute, not its wisdom or necessity. That is within the sole discretion and prerogative of the Legislature.” (See Judge Garcia Ruling, Aug. 30, 2017, pg. 92) “Indeed,” he continues, “at the end of the day, the Legislature is free to ignore the pleas of city and county officials.” (Id.) However, he then determined the best interests of the public would be served by blocking SB 4 because the legislation “will erode public trust and make many communities and neighborhoods less safe.” (Id.) He also found “ample evidence that localities will suffer adverse economic consequences, which, in turn, harm the State of Texas.” (Id.)
In his ruling, Judge Garcia first contended that federal law preempted SB 4. According to Judge Garcia, Texas law enforcement officers were tasked with enforcing immigration law under SB 4. (Id. at pages 30-32) “The authority to regulate immigration enforcement rests with the federal government. Texas cannot – through state law – expand the ‘limited circumstances’ in which law enforcement may perform the functions of immigration officers.” (Id. at page 31)
Additionally, he claimed that SB 4 was unconstitutional because it violated the First, Fourth and Fourteenth Amendments. Judge Garcia held that SB 4 “permitted speech on one side of the immigration policy debate but not the other” thus violating the First Amendment – saying “those who favor a policy that materially limits the enforcement of immigration laws cannot express their ideas but those who disfavor the same policy may freely speak about their feelings, thoughts, views and beliefs.” (Id. at page 43)
Judge Garcia further argued that requiring all local law enforcement to comply with all detainer requests violates the Fourth Amendment, which protects against unreasonable searches and seizures. According to Judge Garcia, detention pursuant to an Immigration and Customs Enforcement detainer request is a Fourth Amendment seizure that must be supported by probable cause and since “local officials are not authorized or trained to assess the probable cause of removability, they are not capable of making a particularized assessment in light of the information available to them.” (Id at page 79)
Finally, Judge Garcia asserted that SB 4 was overly vague and violated the due process clause of the Fourteenth Amendment. According to Judge Garcia SB 4’s prohibition against policies or practices that “materially limit” immigration enforcement is unconstitutionally vague because it imposes penalties on localities arbitrarily. (Id. at page 59)
The fight over SB 4 is far from over. Texas Attorney General Ken Paxton has vowed to fight to preserve SB 4. “Texas has the sovereign authority and responsibility to protect the safety and welfare of its citizens,” he said. “We’re confident SB 4 will ultimately be upheld as constitutional and lawful.” “(See Attorney General Ken Paxton Press Release, Aug. 30, 2017) The ruling has been appealed to the 5th Circuit which is the most skeptical court in the nation when it comes to sanctuary policies.