The Mexican American Legal Defense and Educational Fund, or MALDEF, filed suit Sunday against Gov. Greg Abbott, Texas Department of Public Safety Director Steve McCraw and the Texas Public Safety Commission, which oversees the DPS. The group alleges that the state has violated the U.S. Constitution’s Supremacy Clause because immigration enforcement is only a federal responsibility. The lawsuit, filed on behalf of two San Antonio landlords and the director of an immigrant services agency, also says the new provision violates the plaintiffs’ guarantee to due process.
The provision in question is part of House Bill 11, a sweeping border security measure that went into effect in September.
Under that provision, people commit a crime if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”
MALDEF said the law was “enacted on dubious advice” because lawmakers were warned that the harboring provision would not withstand a constitutional challenge.
“The U.S. Supreme Court, as well as federal courts in Arizona, Alabama, Georgia, Pennsylvania, and South Carolina have all struck down, as unconstitutional, state-enacted immigrant harboring laws like the one in HB 11,” Nina Perales, MALDEF’s vice president of litigation and the plaintiffs’ lead counsel, said in a statement. “Texas already has enough laws to protect us from human smuggling without targeting religious and nonprofit organizations that care for immigrants.”
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Perales said recent testimony by McCraw at the state Capitol made filing the litigation more urgent.
“We do know from public statements that were made by Director McCaw that they are moving forward to implement the harboring law so now was the time to challenge it,” she said.
The lawsuit specifically cites McCraw’s testimony from last week where he told lawmakers about the agency’s preparations to further implement HB 11.
“Yes, we’ve educated [and] we’ve trained,” the filing quotes McCraw as telling the committee.
TrailBlazers has a copy of the lawsuit and some further detail.
Lawmakers said their goal was to target those engaged in the criminal business of smuggling. But codifying that intent proved difficult, as many raised concerns that pastors, immigration-rights groups and others could be roped in with felony charges.
“The bill that was filed … didn’t account for a lot situations that could put family members or people innocently going about their day in the sights of prosecution,” said Rep. Poncho Nevarez, D-Eagle Pass.
So Republicans and Democrats – along with a spate of attorneys – teamed up to allay those concerns.
They ended up focusing on those who “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.” The person would have to have the intent of obtaining financial gain.
That work helped the bill receive significant Democratic support. But it didn’t erase all worries.
“We needed to rifle shot that thing a little bit more,” said Nevarez, who worked on the language and still voted for the bill. “We tried, and it may be that this lawsuit is a good way of showing us how we need to tailor the statute a little bit better.”
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The MALDEF suit focuses on two landlords – one in Farmers Branch – who don’t ask their tenants to prove their immigration status before renting, along with an aid group that provides shelter and legal services to those who are in the country illegally.
Rep. Joe Moody, an El Paso Democrat who also worked on the bill , said a prosecutor would be “ill-advised” to pursue those cases. He added: “The goal was to be precise in targeting people that were part of smuggling networks, part of a criminal element.”
That’s certainly a reasonable goal, but it sounds like it may not have been met. We know that immigration issues will be on the front burner for the 2017 Legislature, though much of that is about pandering and fearmongering. If we can get past that, perhaps this issue can be addressed constructively, whether or not the court has ruled on it by then. I hope so, anyway. The Current has more.