(CN) – A three-judge panel of the Fifth Circuit ruled Tuesday that a Texas law banning sanctuary cities can go into effect while the legal fight over the constitutionality of the measure continues in federal court.
The law, backed by the Trump administration, requires local police to comply with detainer requests from U.S. Immigration and Customs Enforcement officers to hand over immigrants for possible deportation. It also permits local law enforcement to question the immigration status of any “lawfully detained” person, including people stopped for minor traffic offenses.
Senate Bill 4 was supposed to go into effect in September, but U.S. District Judge Orlando Garcia issued a preliminary injunction, ruling that the plaintiffs in the case – including several Texas cities, counties, local officials and social justice groups – were likely to succeed on the merits of many of their constitutional challenges to the law.
The Fifth Circuit’s Tuesday ruling overturns most of Garcia’s injunction.
The panel found that none of the challenged provisions of the anti-sanctuary cities law facially violate the U.S. Constitution, except for a section that prohibits local elected officials from “endorsing” less restrictive immigration policies.
SB 4 would punish local officials who “endorse” any policy that limits the enforcement of immigrations laws with up to a year in jail and fines of $25,000 a day.
“As the plaintiffs point out, under the state’s rationale, a local sheriff may violate SB4 by answering questions at a local town hall meeting or press conference or testifying to a legislative committee,” U.S. Circuit Judge Edith Jones wrote for the panel. “The state cannot regulate the substance of elected officials’ speech under the First Amendment without passing the strict scrutiny test.”
The plaintiffs have also claimed that the law’s ICE-detainer mandate violates the Fourth Amendment, that SB 4 is preempted by federal immigration law, and that a provision prohibiting local agencies and campus police from adopting policies that “materially limit” immigration enforcement is unconstitutionally vague.
The Fifth Circuit, however, found that they are unlikely to succeed on the merits of any of these constitutional claims.
“Bringing a facial challenge, it is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate will often cause Fourth Amendment violations … the plaintiffs must establish that every seizure authorized by the ICE-detainer mandate violates the Fourth Amendment,” Jones said.
In a statement Tuesday, Texas Attorney General Ken Paxton said he was pleased that the New Orleans-based appeals court found that SB 4 is “lawful, constitutional and protects the safety of law enforcement officers and all Texans.”
“Enforcing immigration law prevents the release of individuals from custody who have been charged with serious crimes,” Paxton said. “Dangerous criminals shouldn’t be allowed back into our communities to possibly commit more crimes.”
Texas Governor Greg Abbott, who championed SB 4 as one of his “emergency items” during the legislative session last year, said the intent of the law was to make communities safer by keeping criminal immigrants off the streets.
But throughout the 140-day legislative session, opponents to the bill, including several police chiefs and sheriffs, told lawmakers that SB 4 would make communities less safe by making immigrants distrustful of police and reluctant to report crimes.
In Judge Garcia’s courtroom last June, witnesses for the plaintiffs described what they called the discriminatory intent of the law. State Representative Ana Hernandez, D-Houston, testified about the racially charged atmosphere in the Texas House of Representatives as SB 4 was pushed through that chamber, describing how her colleagues repeatedly used the derogatory term “illegals” to describe undocumented immigrants.
Governor Abbott did not release a formal statement Tuesday, but wrote on Twitter: “Allegations of discrimination were rejected. Law is in effect.”
Michelle Tremillo, executive director of the Texas Organizing Project Education Fund, one of the plaintiff in the case, said in a statement Tuesday that the Fifth Circuit’s ruling is a temporary victory for Abbott, President Donald Trump and “their white nationalist sympathizers.”
“While not unexpected, this ruling, nonetheless, feels like a punch in the gut for all of us who work to make Texas the most welcoming and just state in the country,” Tremillo said. “This is a fight for the heart of Texas, for our identity as a state that draws its strength from its diversity. We will not be bowed by this decision.”
Lee Gelernt, an attorney with the American Civil Liberties Union who argued the case before the Fifth Circuit, said in a statement that the plaintiffs are currently “exploring all legal options going forward.”
“The court made clear that we remain free to challenge the manner in which the law is implemented, so we will be monitoring the situation on the ground closely,” he said.