AUSTIN, Texas (CN) — Texas filed a preemptive lawsuit Monday asking a federal court to declare the state’s new law banning sanctuary cities constitutional, but it didn’t stop a border town and county from suing back, calling the law unconstitutional and coercive.
Gov. Greg Abbott signed Senate Bill 4 into law Sunday — live on Facebook. It requires state and local governments and their law enforcement agencies to honor “detainer” requests from immigration agencies, with criminal penalties, including up to a year in jail, if a sheriff or her officers refuse to do so.
Texas’s lawsuit was specifically aimed at Travis County and its Sheriff Sally Hernandez, who was one of many law enforcement officers who opposed SB 4, saying it would make her job more difficult. Texas also sued the City of Austin, its mayor, City Council, city manager, and the Mexican American Legal Defense and Education Fund.
Gov. Greg Abbott and Attorney General Ken Paxton, who signed the lawsuit, say SB 4 will protect Texans from dangerous criminals. Hernandez and other sheriffs and police chiefs across the state say it will erode public trust, endangering the communities they are supposed to protect.
Civil rights groups say the law encourages racial profiling, and promised to challenge it in court, which the City of El Cenizo and the sheriff of Maverick County did Monday, in San Antonio Federal Court.
El Cenizo, pop. 3,300, is a border town in Webb County just south of Laredo. Maverick County, whose seat is Eagle Pass, is north of Webb County, also on the border. Its Sheriff Tom Schmerber joined Maverick County Constable Mario Hernandez, El Cenizo Mayor Raul Reyes and the League of United Latin American Citizens in suing Texas, Abbott and Paxton.
SB 4, which is to take effect Sept. 1, includes a host of punitive measures. It prohibits local authorities from adopting policies that prevent a law enforcement officer from asking about a person’s immigration status. It allows local governments and police agencies, including college campus police, to be charged with a Class A misdemeanor, punishable by up to a year in jail and fines of up to $25,000 a day, if they refuse to comply with immigration detainers.
During his webcast bill-signing Sunday evening, Abbott said the “key policies” in the bill have already been upheld by the U.S. Supreme Court — a statement that El Cenizo and Maverick promptly challenged.
Paxton said in the state’s pre-emptive lawsuit that, critics notwithstanding, SB 4 does not violate the Fourth or 14th Amendments, and that he sued Travis County, whose seat is the state capital, “to avoid a multiplicity of suits in various forums.”
Abbott already has withheld $1.5 million in state grants for Travis County. Citing a report from the Department of Homeland Security, Paxton has said that Travis County declined more detainer requests than any other local jurisdiction in the country between Jan. 28 and Feb. 3 this year.
“Defendant Travis County’s deliberate failure to cooperate with federal immigration officials hampers the federal government’s ability to exercise its constitutional authority to make removal decisions,” Paxton said in the complaint.
He also said in the lawsuit that racial discrimination “is not a substantial or motivating factor behind SB 4.”
“SB 4 does not bear more heavily on persons from one race than another,” Paxton said in the complaint. “Any discriminatory intent present within ICE detainers is solely the result of decisions made by federal immigration officers, not Texas law enforcement.”
He said SB 4 does not violate the Fourth Amendment because an immigration detainer is not an unreasonable seizure.
“ICE [Immigration and Customs Enforcement] makes the determination of whether it has probable cause to issue a detainer and will not issue a detainer without probable cause,” Paxton said in the complaint.
Austin Mayor Steve Adler, a defendant in Texas’s lawsuit, said Monday that he’s glad SB 4 will be addressed in court, “where it’s not about politics, it’s about the law.”
“For five months, we’ve been on the sidelines while the Legislature has treated Austin’s safety like a political football,” Adler said in a statement. “A judge will decide whether the United States of America or Texas determines federal immigration policy and whether local police and prosecutors have the discretion to keep their communities safe.”
MALDEF president and general counsel Thomas Saenz said Monday that the civil rights group is proud to stand with Austin and Travis County, and to represent millions of Texans who “reject the odious SB 4 as wholly inconsistent with state history, origins, and future aspirations.”
Saenz called Paxton’s lawsuit frivolous.
“Rather than wait for aggrieved individuals and entities to pursue their many constitutional challenges to SB 4, the state bespeaks its own apparent high anxiety about the legality of Abbott’s Folly … by seeking a preemptive strike through this lawsuit,” Saenz said.
“We will see you in court, Governor Abbott,” he added. “In the meantime, we hope that both the governor and the attorney general will seek treatment for an apparent problem with premature litigation.”
In their own lawsuit, El Cenizo and Maverick County seek declaratory judgment that SB 4 violates the Fourth, Fifth, 10th and 14th Amendments, Articles I and VI of the Constitution, and Title 8 § 1373 of the U.S. Code.
“The State of Texas acts unconstitutionally when it acts to compel and coerce its local government and officials to violate federal law,” El Cenizo’s lawsuit states.
It adds: “The State of Texas may perhaps choose to voluntarily relinquish its retained sovereignty entirely to the federal government, but it has no constitutional or sovereign authority to compel its local government and local government officials to do so.”
The state “particularly has no such power” when it requires local governments to violate “the constitutional rights of individuals targeted by the state’s illegal requirement,” according to the city’s complaint.
An El Cenizo ordinance prohibits city employees and officers in its small volunteer police force from asking people about their immigration status. The policy was enacted to maintain the trust of the community and ensure that all residents, including undocumented immigrants, feel safe reporting crimes, seeking health care and attending school, the complaint states.
“The loss of hundreds of thousands of dollars to plaintiffs and millions in local funds … that support vital services, together with the loss of community trust, and the loss of plaintiff’s sovereign authority to set and follow its own laws in matters appropriately and historically within the control of local government, are imminently at risk,” El Cenizo and Maverick County say.
They too, like Abbott and Paxton, highlight Travis County and Austin.
“Plaintiffs face the imminent loss of state funds by the governor, as has been done to Travis County,” the complaint states.
“Plaintiffs recognize that there will be additional developments related to SB 4 in the weeks and months to come. But the consequences threatened by the State of Texas and Governor Greg Abbott are too severe for plaintiffs to wait.”
The city and county are represented by LULAC national general counsel Luis Roberto Vera Jr., in San Antonio. They seek declaratory judgment that SB 4 is unconstitutional, and an injunction against its enforcement.
The irony in the battling lawsuits is apparent.
Texas, Abbott and Paxton for years have led legal challenges against policies of the Obama administration, on law enforcement, the environment, elections, education and other issues. In these lawsuits, Texas frequently cited state sovereignty and the 10th Amendment.
In their lawsuit, El Cenizo and Maverick County say effectively, “What’s sauce for the goose …”
On Tuesday, the American Civil Liberties Union issued a travel alert for people planning to go to Texas soon, warning of possible violations of their civil rights after the passing of SB 4.
Lorella Praeli, ACLU’s director of immigration policy and campaigns, said in a statement that the group’s goal is to protect Texans and travelers from “illegal harassment by law enforcement.”
“Texas is a state with deep Mexican roots and home to immigrants from all walks of life. Many of us fit the racial profile that the police in Texas will use to enforce Trump’s draconian deportation force,” Praeli said.
Terri Burke, executive director of the ACLU of Texas, called the new law “racist and wrongheaded.”
“Until we defeat it, everyone traveling in or to Texas needs to be aware of what’s in store for them,” Burke said. “The Lone Star State will become a ‘show me your papers’ state, where every interaction with law enforcement can become a citizenship interrogation and potentially an illegal arrest.”