HOUSTON (CN) – Texas asked the Fifth Circuit on Monday to revive its lawsuit over the constitutionality of its law banning sanctuary cities, even though the appellate court has already allowed the legislation to go on the books.
Under Senate Bill 4, signed by Governor Greg Abbott in May 2017, sheriffs and police chiefs can be charged with misdemeanors, punishable with up to a year in jail and fines of $25,500 a day, if they ignore requests from U.S. Immigration and Customs Enforcement agents to hold undocumented immigrants in jail so ICE agents can pick them up.
The Legislature’s Republican majority passed SB 4 after President Donald Trump signed an executive order in January 2017 threatening to cut federal public safety grants to cities and counties that blew off ICE detainer requests.
Texas moved forward with SB 4 despite opposition from Democratic state lawmakers and law enforcement officials, who said it would lead to racial profiling, and make cities less safe, as immigrants, fearing they could be arrested and deported, would avoid filing police reports.
SB 4 lets police question lawfully detained people about their immigration status.
With some law enforcement officials questioning SB 4’s legality and indicating they would bring a court challenge, Texas Attorney General Ken Paxton beat them to the courthouse.
Hours after Abbott signed SB 4, Paxton brought suit in Austin federal court, seeking a declaration that the law is constitutional and not preempted by the Supremacy Clause, which bars states from engaging in any functions exclusively entrusted to the federal government.
Within weeks of SB 4’s passage, El Paso County and the cities of San Antonio and El Cenizo filed court challenges, and were joined by intervener plaintiffs Travis County, its seat, the city of Austin, and the cities of Houston and Dallas.
U.S. District Judge Orlando Garcia consolidated those cases in San Antonio federal court.
After Garcia refused Texas’ motion to transfer all the SB 4 cases to Austin to consolidate them with its declaratory relief lawsuit, U.S. District Judge Sam Sparks dismissed Texas’ case for lack of standing.
Though Abbott signed SB 4 in May 2017, it was not set to take effect until September 2017.
Judge Sparks held Texas could not rely on El Paso County Sheriff Richard Wiles’ statement that SB 4 is “pointless” or El Cenizo Mayor Raul Reyes’ claims it is “dangerous and discriminatory” and “opens the door to racial profiling” as proof they would flout the law after it took effect.
“The state has produced no evidence that at the time of filing suit, it was clear defendants planned to violate the law once it takes effect … The general rule is that a plaintiff must have standing at the commencement of a suit,” Sparks wrote in an August 2017 dismissal order.
Sparks, a George H.W. Bush appointee, said granting Texas standing would “open a Pandora's box and invite every local government to seek a court's judicial blessing” before a law took effect. Texas appealed to the Fifth Circuit.
After Garcia blocked much of SB 4 with a preliminary injunction, a three-judge panel of the Fifth Circuit lifted the injunction in March.
The panel approved all but part of SB 4 that barred law enforcement officials from “endorsing” policies that limit immigration enforcement, finding it was a First Amendment violation.