Texas officials feel ‘whiplash’ after courts halt immigration law

Local officials across Texas are anxiously awaiting whether the state’s tough new immigration law will go into effect and how it will affect their communities.

The law makes it a state crime to enter Texas from outside a port of entry, punishable by up to six months in prison in the first instance and up to 20 years in prison for subsequent entry.

In a dramatic series of decisions Tuesday, Texas Senate Bill 4 briefly went into effect following a Supreme Court ruling, but was delayed again in an 11th-hour ruling Tuesday night.

Now that the law is back before the ultra-conservative 5th Circuit Court of Appeals, local officials say they have no idea what will happen next.

“This is a complete whiplash for almost every local government,” said El Paso County Attorney Bernardo Cruz, one of the plaintiffs in the lawsuit against the state.

Cruz said each time the law is enacted again, it increases the chances that someone will end up in county jail under a potentially unconstitutional law and it will be struck down again.

“There’s a local sheriff, there’s a local district attorney, there’s a local judge. They’re the ones who are probably going to take that detainee in at 3 a.m., and they don’t know what the law requires them to do. We need to understand if there are any.”

Cruz said that not only do these officials have to “prepare for something that may or may not happen,” but they also “have to actually do it in real time, right? So the law… It’s very difficult to plan ahead because it’s so extensive.”

Cruz said many of the wrinkles in the law have yet to be ironed out. For example, if a state judge directs a person to go to Mexico, whose job is it to get that person there?

Or what happens if someone is deported from an inland city like Amarillo to a border area like El Paso, refuses to cross into Mexico, and is arrested and detained? Which county pays to lock them up, house them and try them?

“You know, all of this is not very interesting from a legal standpoint or perhaps even for the public. But I think these are issues that local governments have to grapple with.”

Much of the confusion stems from the sheer novelty of SB4. SB4 broadly extends Texas’ powers into territory traditionally occupied by the federal government, which has historically preempted immigration efforts by individual states.

Texas is basing this expansion on the idea that it is facing an “invasion” from Mexico, but federal judge David Ezra has rejected this idea, and during a legal battle between the Biden administration and the state. , which led him to put law enforcement on hold in February. The Texas case was held in court.

This ruling marked the beginning of a dizzying turnaround.

The day after the Ezra decision, the Fifth Circuit rejected The Biden administration appealed his hold to the Supreme Court, with vague and confusing results.

On Tuesday, the high court allowed the law to temporarily take effect, but did not rule on its constitutionality, instead directing the Fifth Circuit to quickly rule on whether the law is legal. did.

Late Tuesday night, the Court of Appeals scheduled an emergency hearing for Wednesday, during which time enforcement of the law was suspended.

Stephen Vladeck, a law professor at the University of Texas at Austin, said the series of contradictory decisions that preceded an actual decision on the legality of the measure was “indefensibly confusing.” Ta. Said Texas Tribune.

“I hope we can all agree that this type of judicial flogging is bad for everyone, even if it means suspending SB4 indefinitely,” he said.

During oral arguments Wednesday morning, the 5th Circuit judges seemed to be splitting up on the merits of the state lawsuit, according to the Texas Tribune.

One of the major factors adding to the uncertainty is the impact this law will have on the lives of the approximately 1.6 million undocumented immigrants who cross the Texas-Mexico border and live and work in Texas, their families, and local governments and law enforcement. It comes from the question of whether or not to have an impact. They may be responsible for arresting them.

As 5th Circuit Judge Andrew Oldham, a Trump appointee, pointed out on Wednesday, that possibility remains theoretical.

“No one has been arrested, so we have no idea how it will actually be carried out,” Oldham said.

“So we’re predicting all of this.”

In arguments before Judge Ezra in February, state attorneys argued that SB4 applies only when immigrants are seen crossing the border, such as those living in Houston. I vehemently insisted that it would not be done.

During the roughly eight hours the law was in effect on Tuesday, local law enforcement agencies across Texas issued statements essentially claiming that immigration enforcement was not their job.

The El Paso County Sheriff’s Office, for example, has said it does not prioritize law enforcement and that immigration enforcement is a job for the federal government. “It’s problematic to bring local law enforcement into this,” a department spokesperson said. Said.

Dallas Police Chief Eddie Garcia said the law “has been a cause for concern for some members of the community,” adding that the department “understands these concerns and will continue to implement current legislation prohibiting racial profiling.” We will continue to enforce state law.”

Similar statements were made by cities such as: san antonio, austinHouston, and even smaller cities like lubbockMaverick County Sheriff Tom Schmerber told a local newspaper that enforcing the law was “impossible.”

“What would happen if we deported American citizens?” Schmelber said. “My members are not trained in immigration work.”

Other deeply conservative sheriffs echoed this same underlying theme — like Tarrant County Sheriff Bill Wayborn; Post to Xofficially known as Twitter, said Texans are “frustrated by the continued onslaught of illegal immigration into our country and the federal government’s unwillingness to take action.”

But after this preamble, Weybourn wrote that SB4 fails to comply with the law because “it is unlikely that law enforcement in North Texas will be able to determine an individual’s illegal immigration status and enforce the law.” , also said SB4 would likely be outside his purview. The intersection itself.

The idea is echoed Bill sponsor Matt Schaefer (R-Tyler) wrote of the It would be misplaced to expect them to do so.” ”

But the sheriff, and the prosecutor trying the case, may not have much choice, Harris County Attorney Christian Menefee (whose jurisdiction covers much of Houston) told The Hill. Told.

Even if police and sheriff’s orders try to avoid direct enforcement, “Hispanic and Latino communities will be at risk of being profiled,” he said. In a large law enforcement agency, even if an order comes from the top, there is no guarantee that it will be passed on to every officer. ”

But there’s a bigger risk, he says. If SB4 is ultimately upheld, it would “increase pressure from states and elected officials seeking to coerce and pressure law enforcement agencies to enforce the law in a pervasive and discriminatory manner. right”.

The legal infrastructure already exists to make this happen.Last year, the state Legislature passed the bill Eliminate “rogue” district attorneys who do not prosecute state crimes.

The bill targets local prosecutors who would not prosecute those who assist a woman with an abortion, but could have broader application. In January, Attorney General Ken Paxton (R) also sued five Texas municipalities seeking to block prosecution of marijuana laws.

The law, combined with broader moves by state legislatures and executive agencies to curb the power of cities, puts local governments in a tough spot, Menefee said.

“Given that many of the heads of law enforcement agencies and top officials in Texas are elected, if state officials have a policy, we will take punitive action against them.” I think it’s understandable that they’re trying to figure out a way to do it, or an unwritten rule of not enforcing the law.”

“So this is a big deal. It’s not just a bully pulpit. It could be funding threats, it could be threats to target elected officials. there is.”

Some officials are trying to tread carefully on that possibility.

in him guidance Sheriff Julio Salazar of Bexar County, home to San Antonio, which is about two-thirds Hispanic, told lawmakers there is a fine line between enforcing future state immigration laws and federal racial profiling laws. I tried to walk between the two.

“What we need legislators to understand is that it may not be acceptable to say, ‘We can’t enforce the law,’ right? That’s not what we’re saying.” Salazar said.

“But what we’re saying is, ‘If you choose to do that, you’re taking on some responsibility for yourself.’ You’re putting a lot of responsibility on this agency.” It will be.”