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September 5th, 2017:

More on the SB4 ruling

Circling back to one of the big court decisions from last week, Slate’s Mark Joseph Stern talks to ACLU attorney Lee Gelernt about what was blocked by federal Judge Orlando Garcia in the “sanctuary cities” lawsuit.

Mark Joseph Stern: SB 4’s overarching goal is to compel all Texas law enforcement officers to enforce federal immigration law. Why is that illegal?

Lee Gelernt: SB 4 says that local entities, which are very broadly defined, cannot engage in a practice or adopt a policy that would “materially limit” federal immigration enforcement. We sued on behalf of a mayor and sheriff who were concerned that this provision meant they’d lose local control over their police force—and turn their police into adjuncts to the Trump administration’s immigration enforcement. Complying with SB 4 would drain resources and cause the community to lose trust in the police: Every time community members reported a crime, they’d be concerned that an officer would ask them about their immigration status. We already saw anxiety about that build during the recent hurricane.

Judge Garcia blocked this requirement because Congress has already laid out the procedure through which local law enforcement can become authorized to enforce immigration law. That procedure imposes numerous requirements on local law enforcement. SB 4 circumvents those requirements, which means it’s pre-empted by federal law.

[…]

One of SB 4’s most startling provisions effectively bars public officials from opposing the measure: No officer or employee of a local government may “endorse” a policy limiting the enforcement of federal immigration law. Each violation incurs a fine of $25,500, and violators may be removed from office. The court blocked this provision on First Amendment grounds. My biggest question is what in the world was Texas thinking?

In court, Texas didn’t really make a full-throated defense of that provision. The state’s lawyers tried to argue that the provision doesn’t actually prohibit speech. But of course it does, even though the statute doesn’t define “endorse.”

The court wrote that “endorse” could mean “a recommendation, suggestion, comment, or other expression in support of” limiting local immigration enforcement.

Right. The provision seems to bar local officials and employees from criticizing SB 4 even when they’re not acting in their public capacity. Police officers and mayors aren’t even sure if they can testify against SB 4 in court. This prohibition is so cryptic—but the penalties are extreme.

The court also blocked a provision that punishes any official who “materially limit[s]” law enforcement from “assisting or cooperating” with federal immigration officers. Anyone who violates this requirement is subject to both criminal and civil penalties. Why is that illegal?

Due process requires fair notice of what a law forbids or requires, and Judge Garcia ruled that this provision is simply too vague to comport with that rule. For instance, imagine a sheriff gets a call from a federal immigration officer who says, “We need your help.” Does the sheriff have to allow his officers to go? If he doesn’t, he could face tens of thousands of dollars in fines as well as jail time and removal from office. In court, Texas argued that the attorney general would never move against a sheriff in a case like that. But a lawyer’s promises aren’t good enough for people on the ground who have to make these decisions in real time.

SB 4 compels local law enforcement to honor “ICE detainers”—federal requests to detain possibly undocumented individuals for up to 48 hours after they should be released so that Immigration and Customs Enforcement can retrieve them. ICE detainers are contentious because they seem to infringe upon the Fourth Amendment’s bar on unreasonable detention.

We believe it is unconstitutional to detain an individual without probable cause of an actual crime. Living in the United States without documentation is not a crime but a civil violation, which raises concerns about the lawfulness of ICE detainers.

But even assuming that the Fourth Amendment allows states to detain individuals based on probable cause of a civil violation, SB 4 is illegal. Local jail officials must be able to make their own assessments of detainees to determine whether there is probable cause that they’ve committed a civil immigration violation. And SB 4 allows officials almost no discretion. It forces them to honor ICE detainers and detain an individual even if they think that detention is unlawful. SB 4 puts jail officials in a bind: Either honor the ICE detainer and act unconstitutionally, or don’t honor the detainer and subject yourself to jail time and removal from office.

See here for the background. The state has already filed it appeal, so the next action will come from the Fifth Circuit. As the Trib notes, not every part of the law was blocked.

The ability for local law enforcement officers to ask about status, and then turn that information over, are parts of SB 4 that some of its opponents fear the most. Those items weren’t blocked. But Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund (MALDEF), attorneys for the plaintiffs in the lawsuit, said those provisions would probably not alter day-to-day operations significantly if they are followed the way the law states.

“These two provisions left in place largely replicate what is existing law,” he said Thursday during a call with reporters. “We further note — and Judge Garcia made clear — that the rights and the ability of police to act on any information received extends only to turning that information over to federal immigration authorities.”

That means that an officer can’t arrest that person based solely on the information. And, Saenz said, an officer can’t demand that information during a lawful stop.

“Every person has a right to refuse any question posed by a local police officer or sheriffs deputy about immigration status, and the refusal to answer questions about immigration should have no repercussions,” he said.

No doubt this provision is a big part of the reason why many immigrant victims of Harvey have not reached out for help, despite promises from mayor Turner among others that they will be fine. Even with the win in court, this law has already done a lot of damage. Texas Monthly has more.

The case for calling a Harvey special session

Rep. Gene Wu disagrees with Greg Abbott’s decision.

Rep. Gene Wu

The historic level of damage and suffering caused by Harvey requires that we tap into our state’s Rainy Day Fund. Gov. Greg Abbott’s decision to not call a special session of the Texas Legislature to access emergency funding will worsen the long-term economic effects of one of the most powerful storms to ever land on our shores.

Abbott has stated that there is no need for a special session, implicitly saying that there is no need to tap into the Economic Stabilization Fund — our state’s savings account, commonly known as the Rainy Day Fund — and that existing resources are sufficient to deal with the widespread devastation caused by Harvey.

However, if there has been one lesson that I’ve learned in my three terms in the Legislature, it’s that existing resources are never adequate in Texas. Our schools continue to be some of the worst funded in the nation, half of our rural hospitals are on the verge of closing, and we barely maintain our existing infrastructure. Texas mostly skates by on a combination of luck and creative accounting. But more importantly, what we have budgeted for are common occurrences and normal disasters. The historic level of damage from Harvey is anything but common.

[…]

The Rainy Day Fund is available right now. The Texas Legislature needs to only meet for a few days and send a bill to the governor to access the funds. There is strong bipartisan support because members understand the desperate need for a quick response. In this past legislative session, conservative members argued that the fund should not be used for “reoccurring” expenses because we needed to save it for one-time emergencies. This is that emergency.

The state could provide immediate, low-interest or no-interest small loans to help businesses rebuild quickly. The money could go to help Houston ISD to repair the more than 200 schools that suffered flood damage, including 53 with critical damage. Harris County could use the funds to expedite repairs so that courts and the jury assembly center are not closed for the next three months. Outside of the Houston area, entire cities need to be rebuilt. Simply leaving local counties and municipalities on their own to rebuild means a slower recovery — possibly causing businesses to close or leave our state, and taking jobs with them.

See here for the background. I guess I’m not fully clear on what the Legislative Budget Board can and cannot do, and what gaps there would be if only the LBB gets to act. I do think Rep. Wu is right on about appropriating money to the schools and school districts that have been heavily damaged by Harvey. I can’t think of a better use of Rainy Day Fund money than to make schools safe and available for students again. Again, if the LBB can do this, great. It will be a lot less messy that way – I mean, if you think the jackasses of the Freedom Caucus won’t try to screw with an emergency appropriations bill for school repairs, I have to ask what Legislature you’ve been watching – but if the LBB can’t do that, then a special session it needs to be.

Now is an excellent time to give blood

You want a simple but vital thing to do to help with Harvey recovery? Schedule a blood donation.

The Gulf Coast Regional Blood Center is appealing for donations after a four-day stoppage in the wake of Tropical Storm Harvey that has left its supply at critical levels.

The local bank resumed collections Thursday at 10 of its neighborhood donor centers and eight mobile locations in the greater Houston area, all of which had been shut down since Sunday. Only its Clear Lake facility was damaged by flooding and not ready to open.

“O-negative is always most needed because it is the universal blood type, but we are happy for all donations,” said Joshua Buckley, spokesman for the blood center. “If donors can’t get out this week, next week would be good, too.”

Buckley said the re-opening of the centers and mobile location drives are critical to make up the blood not collected as a result of Harvey. The bank had an adequate blood supply prior to the storm but now is precariously low, said Buckley.

Go here and click on Where To Donate to find a convenient time and location. I’m scheduled for today. This is something most of us can do, and it’s something all of us that can do need to do. Thanks very much.