City of El Cenizo, Texas v. State of Texas
City of El Cenizo, Texas v. State of Texas
Opinion
Texas cities, counties, and local officials challenge Senate Bill 4 ("SB4"), a Texas law that forbids "sanctuary city" policies throughout the state. SB4 prohibits local authorities from limiting their cooperation with federal immigration enforcement, and it requires local officers to comply with Immigration and Customs Enforcement ("ICE") detainer requests. In their pre-enforcement lawsuit, the plaintiffs alleged a battery of constitutional violations: (I) SB4 is preempted by federal immigration law, (II) SB4's "endorse" prohibition violates the First and Fourteenth Amendments, (III) SB4's ICE-detainer mandate violates the Fourth Amendment, and (IV) SB4's phrase "materially limits" is unconstitutionally vague under the Fourteenth Amendment. The district court issued a preliminary injunction, enjoining several of the law's provisions. Texas appeals the injunction, and the plaintiffs cross-appeal the district court's refusal to issue a broader injunction. With one exception, SB4's provisions do not, on their face, violate the Constitution. For the following reasons, we uphold the statute in its entirety except for the application of the "endorsement" prohibition, Tex. Gov't Code § 752.053(a)(1), to elected officials.
BACKGROUND
I. Senate Bill 4
In May 2017, the Texas Legislature enacted Senate Bill 4 to prohibit sanctuary city policies. The law imposes duties on certain state officials and provides civil and criminal liability for violations of those duties. Three parts of the law are critical to this case: (A) the immigration-enforcement provisions, (B) the ICE-detainer mandate, and (C) the penalty provisions.
A. Immigration-Enforcement Provisions
As codified at Texas Government Code § 752.053(a)-(b), SB4 forbids local entities from limiting the enforcement of federal immigration law. Subsections (a)(1) and (a)(2) of Section 752.053 provide broad prohibitions. Under subsection (a)(1), a local entity may not "adopt, enforce, or endorse a policy under which [it] prohibits or materially limits" immigration enforcement. Id. § 752.053(a)(1). After subsection (a)(1) deals with anti-cooperation "policies," subsection (a)(2) further prohibits any "pattern or practice" that similarly frustrates enforcement. Id. § 752.053(a)(2).
Following the general prohibitions in (a)(1) and (a)(2), subsection (b) enumerates concrete examples of immigration-enforcement activities that a local entity may not "prohibit or materially limit." Id. § 752.053(b). These include (b)(1) "inquiring into the immigration status" of lawfully detained individuals, (b)(2) sharing immigration-status information with federal agencies, and (b)(3) "assisting or cooperating with a federal immigration officer as *342 reasonable or necessary, including providing enforcement assistance." Id. § 752.053(b)(1)-(3). 1
The prohibitions in Section 752.053 apply broadly to any "local entity or campus police department." Id. § 752.053(a)-(c). SB4 defines "local entity" to include the governing bodies of counties and municipalities as well as officers or employees of those authorities, including "a sheriff, municipal police department, municipal attorney,[ ] county attorney[,] ... district attorney or criminal district attorney." See id. § 752.051(5)(A)-(C). But SB4 excludes hospitals, school districts, and certain community centers - as well as officers employed by these institutions - from the law's requirements. See id. § 752.052(a)-(f).
B. ICE-detainer Mandate
As codified at Texas Code of Criminal Procedure article 2.251, SB4's ICE-detainer mandate requires law-enforcement agencies to comply with detainer requests submitted by ICE. An ICE detainer is a written request to state or local officials, asking them (1) to notify the Department of Homeland Security ("DHS") as soon as practicable before an alien is released and (2) to maintain custody of the alien for up to 48 hours beyond the preexisting release date so that DHS may assume custody. 2 As of April 2017, ICE must make this request using Form I-247A, which must be accompanied by a signed administrative warrant. Form I-247A states that DHS has determined that there is probable cause that the subject of the request is a removable alien, and ICE officers check one of four boxes on the form to indicate the basis for probable cause. 3
SB4's ICE-detainer mandate applies whenever "[a] law enforcement agency [ ] has custody of a person subject to" an ICE detainer. Tex. Code Crim. Proc. art. 2.251(a). Under subsection (a), the mandate requires law enforcement agencies to "comply with, honor, and fulfill" ICE's requests. Id. It also requires that the individual in custody be informed he "is being held pursuant to" an ICE detainer. Id. art. 2.251(a)(2).
Subsection (b) provides a lone exception to the detainer mandate: law enforcement agencies need not comply with detainers if shown "proof that the person is a citizen of the United States or ... has lawful immigration status." Id. art. 2.251(b). Subsection (b) states that such "proof" could include a Texas driver's license or similar government-issued ID. Id. art. 2.251(b).
C. Penalty Provisions
SB4 is enforced through civil and criminal penalties by Texas's Attorney General. Private citizens may file complaints with the Attorney General, alleging by sworn statement that a local entity is violating the enforcement provisions. See Tex. Gov't Code § 752.055(a). Upon determining that such a complaint is valid, the Attorney General may file suit in state court to enforce the law. See id. § 752.055(b). If a court finds there has been a violation, local entities may be subject to fines of $1,000 to $1,500 for a first violation and $25,000 to *343 $25,500 for subsequent ones, with each day of continuing violation constituting a separate violation. See id. § 752.056(a)-(b). If the Attorney General is presented with evidence that a public officer has violated the enforcement provisions, SB4 requires the Attorney General to file an enforcement action. See id. § 752.0565(b). Public officers found guilty of violating the law are subject to removal from office. See id. § 752.0565(c).
SB4 makes certain officials' failure to comply with SB4's ICE-detainer provision a misdemeanor. See Tex. Penal Code § 39.07(a)-(c). SB4 further requires Texas to indemnify local entities against any claim arising out of their good-faith compliance with an ICE-detainer request. See Tex. Gov't Code § 402.0241.
II. Prior Proceedings
Before SB4 could go into effect, several Texas cities, counties, local law-enforcement and city officials, and advocacy groups challenged the law in three consolidated actions. The plaintiffs sought a preliminary injunction, and the district court found the plaintiffs likely to prevail on the following claims:
• Section 752.053(b)(3)'s assistance-cooperation provision is field and conflict preempted by federal immigration law;
• Section 752.053(a)(1)'s "endorse" prohibition violates the First and Fourteenth Amendments because it is overbroad, discriminates on the basis of viewpoint, and is unconstitutionally vague;
• Section 752.053(a)(1) and (a)(2)'s "materially limits" prohibitions are unconstitutionally vague under the Fourteenth Amendment; and
• Article 2.251's ICE-detainer mandate violates the Fourth Amendment.
Enjoining these provisions, the district court nevertheless rejected the plaintiffs' claims that SB4 was preempted more generally.
Following the district court's order, Texas moved this court to stay the injunction pending appeal. The stay panel granted the motion in part, finding Texas likely to prevail on the Fourth Amendment and preemption claims, and stayed the injunction as to article 2.251's ICE-detainer mandate and Section 752.053(b)(3)'s assistance-cooperation provision.
City of El Cenizo v. Texas,
No. 17-50762,
STANDARD OF REVIEW
"To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest."
Tex. Med. Providers Performing Abortion Servs. v. Lakey,
DISCUSSION
I. Preemption
Under the federal Constitution, "both the National and State Governments have elements of sovereignty the other is bound to respect."
Arizona v. United States,
A. Field Preemption
Field preemption occurs when "States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."
Arizona,
The district court found only one provision of SB4 field preempted. According to the district court, Section 752.053(b)(3)'s assistance-cooperation provision impermissibly regulates the field of "immigration enforcement," which Congress fully preempted through comprehensive regulation. The plaintiffs now argue that SB4 is field-preempted in its entirety because Congress occupied the field of "federal-local cooperation in immigration enforcement."
As evidence that Congress has comprehensively regulated the relevant field, the plaintiffs point to federal statutes regulating local cooperation with immigration enforcement.
See
In addition to these provisions, the plaintiffs rely heavily on
Section 1357 also contains a critical savings clause.
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State -
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
The plaintiffs' reliance on these provisions is misplaced; SB4 and the federal statutes involve different fields. Federal law regulates
how
local entities may cooperate in immigration enforcement; SB4 specifies
whether
they cooperate. One could perhaps define the field broadly enough to include both SB4 and federal legislation, but the relevant field should be defined narrowly.
See Arizona,
To establish field preemption, moreover, the plaintiffs must prove that federal law evinces "the clear and manifest purpose of Congress" to preclude even complementary state legislation on the same subject.
De Canas,
*346
There is a further weakness in this field preemption claim. The plaintiffs acknowledge that the Tenth Amendment prevents Congress from compelling Texas municipalities to cooperate in immigration enforcement.
See generally Printz v. United States,
The district court's field preemption analysis underscores the difference between SB4 and the relevant federal legislation. The district court found that Section 1357 demonstrates Congress's intent to retain oversight over local immigration enforcement. But SB4 does nothing to strip oversight from the Federal Government. In its operation, SB4 is similar to one of the city ordinances some plaintiffs have themselves adopted. These ordinances regulate whether and to what extent the local entities will participate in federal-local immigration enforcement cooperation. 5 SB4 accomplishes the same goal on a state-wide level. If SB4 is field preempted, so too are the local ordinances that regulate "federal-local cooperation in immigration enforcement."
While this accentuates the substantive difference between SB4 and the relevant federal legislation, the plaintiffs' arguments focusing on congressional intent sound principally in conflict preemption. We analyze these below.
B. Conflict Preemption
Conflict preemption occurs when "compliance with both federal and state regulations is a physical impossibility,"
Florida Lime & Avocado Growers,
i. The Assistance-Cooperation Provision
Section 752.053(b)(3) of the Texas Government Code forbids any action that would "prohibit or materially limit" a specified official from "assisting or cooperating with a federal immigration officer as reasonable or necessary, including providing enforcement assistance." See Tex. Gov't Code § 752.053(b)(3). The plaintiffs argue that this provision is preempted for three reasons: (1) it permits unilateral local immigration enforcement, (2) it authorizes local officers to perform immigration-officer functions without a 287g agreement, and (3) it conflicts with the federal purpose that local cooperation in immigration enforcement be entirely voluntary.
The plaintiffs' first argument misconstrues the statute. Certainly,
Arizona
emphasized the "principle that the removal process is entrusted to the discretion of the Federal Government."
Arizona,
The plaintiffs' second argument suggests that subsection (b)(3) conflicts with federal law by allowing local officers to engage in immigration-officer functions absent the requirements imposed by
This argument discounts the savings clause in
The plaintiffs also contend that this savings clause allows for only case-by-case cooperation. Yet a "case-by-case" qualifier is absent from the statute's text. DHS guidance relied on by the plaintiffs also fails to support their argument. This guidance critiques "systematic" local enforcement that "conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate." 8 State action under SB4's assistance-cooperation *348 provision will not conflict with federal priorities or limit federal discretion in this way because it requires a predicate federal request. DHS guidance does not suggest that subsection (b)(3) authorizes conduct beyond what is allowed by Section 1357(g)(B)(10)'s savings clause. 9
The plaintiffs' third conflict argument unnecessarily reads a preemptive purpose into federal law; they claim that subsection (b)(3) makes
mandatory
what Congress intended to be
voluntary.
To support this argument, the plaintiffs observe that Section 1357(g) refers to both a "State" and a "political subdivision," and they infer that Congress
specifically intended
that "political subdivisions" be able to choose whether to cooperate in immigration enforcement. The plaintiffs support this reading by pointing to
The plaintiffs' arguments fail for two reasons. First, recent Supreme Court decisions in this area undermine this implied congressional purpose. In
Arizona,
for instance, the Supreme Court upheld state laws
mandating
immigration-status inquiries.
See Arizona,
Second, and as noted earlier, the plaintiffs have admitted that, under the Tenth Amendment, Congress could not compel local entities to enforce immigration law. If that is the case, Congress did not choose to make these laws voluntary; it could not have made them mandatory. Section 1373 itself has not been immune from Tenth Amendment scrutiny.
See City of New York v. United States,
*349 ii. The Status-Inquiry and Information-Sharing Provisions
Section 752.053(b)(1) of the Texas Government Code, the status-inquiry provision, forbids local entities from preventing officers from "inquiring into the immigration status of a person under a lawful detention or under arrest."
See
Tex. Gov't Code § 752.053(b)(1). Subsection (b)(2), the information-sharing provision, forbids local entities from preventing officers from maintaining immigration-status information and sharing it with federal agencies.
See
The plaintiffs contend that subsection (b)(1) authorizes "interrogation," which is an immigration-officer function under
If anything, the statute in
Arizona
seems more problematic because it mandates status inquiries where SB4 merely forbids preventing those inquiries. True, the Court in
Arizona
seemed to assume that status inquiries primarily involved communication with ICE and the statute in
Arizona
uses the word "reasonable."
See Arizona,
Regarding subsection (b)(2), the plaintiffs observe that this provision mirrors the federal information-sharing provisions in
*350 II. The "Endorse" Prohibition
Section 752.053(a)(1) provides that a "local entity or campus police department" may not "
endorse
a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws."
See
Tex. Gov't Code § 752.053(a)(1) (emphasis added). The term "local entity" includes not only governmental bodies like city councils and police departments, but also a series of elected officials and "officer[s] or employee[s]" of the listed bodies.
See
We must begin by construing the state statute.
United States v. Williams,
Federal courts must accept a reasonable narrowing construction of a state law to preserve its constitutionality.
See Voting for Am., Inc., v. Steen,
The verb "endorse" literally means "to write on the back of (a document)," 13 but there is no question that the figurative meaning of the verb includes the broad significance the district court ascribed to it. 14 As shown by the district court's survey of dictionary definitions, the most common meaning of "endorse" encompasses "a recommendation, suggestion, comment, or other expression in support of or in favor of an idea or viewpoint that is generally conveyed openly or publicly." Texas is also correct, however, that the verb "sanction" is a common definition for "endorse." 15
*351 And the verb "sanction" denotes the use of official authority to ratify or authorize. 16 The question here is not just whether "endorse" is susceptible to the meaning that Texas proposes, but whether it is reasonable to limit the word accordingly.
For several reasons, we do not find the "endorse" prohibition readily susceptible to this limitation. First, the
noscitur a sociis
canon does not support the state's argument. This canon explains that, "[w]hen several nouns or verbs or adjectives or adverbs - any words - are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar."
See
Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 195 (2012). This canon does not imbue words with unnatural meaning, but serves "rather to limit a general term to a subset of all the things or actions that it covers."
See id.
at 196. For instance, in
United States v. Williams,
the Supreme Court relied on this canon to find that a statute only penalized "speech that accompanies or seeks to induce a transfer of child pornography."
Using noscitur a sociis here to limit "endorse" to the meaning it shares with "adopt" and "enforce" renders "endorse" either superfluous or meaningless. To the extent that all three verbs connote the exercise of government authority to develop and administer policy, "endorse" (as interpreted by the state to mean "officially sanction") adds nothing of substance to the prohibitions against an entity's actually "adopting" or "enforcing" policies at odds with SB4. Without putting action behind his "sanction," an official who merely "endorses" impermissible policies has not "adopted" or "enforced" them, no matter the amount of speech he has devoted to that end. The official's "sanction" is toothless. Alternatively, if an official's "sanction" is functionally equivalent to "adopting" or "enforcing" impermissible policies, the word becomes wholly redundant. There is no generic context, like the "transactional context" noted in Williams, in which "endorse," read to mean "sanction," conveys additional meaning to this provision.
Second, that the clause following "endorse" prohibits the endorsement of "a policy under which the entity or department limits the enforcement of immigration laws" does not support the state's narrow interpretation of "endorse." See *352 Tex. Gov't Code § 752.053(a)(1) (emphasis added). Granted, under this qualifying phrase, SB4 does not regulate any statements approving hypothetical policies or the policies of any other entity of government. But as we have explained, the "endorsement" as "sanction" of policies contrary to SB4, without accompanying action to "adopt" or "enforce" such policies, is "mere" core political speech. This provision's qualifying language accentuates the overlap between "official" and "individual" speech that the state erroneously attempts to deny. 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. 17
In sum, we are unpersuaded that, taken in context, "endorse" "readily" bears the restrictive meaning urged by the state. As written, SB4 proscribes core political speech when such "endorsement" is uttered by elected officials. The state cannot regulate the substance of elected officials' speech under the First Amendment without passing the strict scrutiny test.
See Williams-Yulee v. The Fla. Bar,
___ U.S. ___,
This conclusion does not, however, insulate non-elected officials and employees, who may well be obliged to follow the dictates of SB4 as "government speech."
See Garcetti v. Ceballos,
Such issues are not properly before us because the appellees do not represent the public employees putatively covered by
Garcetti
and the government speech doctrine. The Supreme Court has directed that "the lawfulness of the particular application of the law should ordinarily be decided first" before mounting "gratuitous wholesale attacks" under the overbreadth doctrine.
See Bd. of Trustees of State Univ. of N.Y. v. Fox,
Consistently with but more narrowly than the district court, we affirm the district court's injunction against enforcement of Section 752.053(a)(1) only as it prohibits elected officials from "endors[ing] a policy under which the entity or department prohibits or materially limits the enforcement of immigration laws."
III. The ICE-Detainer Mandate
Article 2.251(a) provides that law enforcement agencies "that ha[ve] custody of a person subject to an immigration detainer request ... shall: (1) comply with, honor, and fulfill any request made in the detainer request ... and (2) inform the person that the person is being held pursuant to" that request. Tex. Code Crim. Proc. art. 2.251(a)(1)-(2). Law enforcement agencies are exempt from the duty imposed by subsection (a) when the individual in custody "has provided proof that the person is a citizen of the United States or that the person has lawful immigration status in the United States, such as a Texas driver's license or similar government-issued identification."
Before reviewing the merits of this issue, we are obliged to address the threshold question whether the plaintiffs have standing to challenge the ICE-detainer mandate. Standing in federal court requires that the plaintiffs "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision."
Spokeo, Inc. v. Robins,
___ U.S. ___,
In
Board of Education v. Allen,
the Supreme Court concluded that school board officials had standing to challenge a state statute requiring school districts to purchase and loan textbooks to students enrolled in parochial schools.
In this case, plaintiff government officials have a claim to standing analogous to the school board members in
Allen.
The plaintiff government officials face criminal penalties in addition to civil fines and expulsion from office if they disobey the ICE-detainer mandate. And if they comply with the allegedly unconstitutional mandate, the violation of their oaths is not the only putative injury; any ICE-detainer mandate enforcement actions that knowingly violate detainees' Fourth Amendment rights could expose the plaintiffs to damage suits.
18
The plaintiff government officials have a sufficient "personal stake" to press their claim based on alleged violation of their oaths and potentially severe personal consequences, and we may proceed to the merits.
See Donelon,
The Fourth Amendment protects individuals "against unreasonable searches and seizures." U.S. Const. amend. IV.
19
A constitutional seizure of a criminal defendant must generally be supported by probable cause. Nevertheless, this case does not involve whether probable cause existed in a particular instance: it is a pre-enforcement facial challenge. Such a challenge is "the most difficult ... to mount successfully."
United States v. Salerno,
The plaintiffs suggest that the Supreme Court's recent decision in
City of Los Angeles v. Patel,
has lowered the bar for facial Fourth Amendment challenges, but they misconstrue the case. ___ U.S. ___,
It is undisputed that
federal
immigration officers may seize aliens based on an administrative warrant attesting to probable cause of removability.
Abel v. United States,
Under the collective-knowledge doctrine, moreover, the ICE officer's knowledge may be imputed to local officials even when those officials are unaware of the specific facts that establish probable cause of removability.
See United States v. Zuniga,
Nevertheless, the plaintiffs make several arguments why this cooperation constitutes a
per se
violation of the Fourth Amendment. First, they defend the district court's holding that state and local officers may only arrest individuals if there is probable cause of
criminality.
The district court erred. Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed.
See Cantrell v. City of Murphy,
The plaintiffs also argue that there is no state law authorizing local officers to conduct seizures based on probable cause of removability. They cite
Lunn v. Commonwealth,
in which the Supreme Judicial Court of Massachusetts held that state officers had no state-law authority to carry out detention requests made in civil immigration detainers.
The plaintiffs next contend that the Fourth Amendment requirement is not satisfied when officers must unthinkingly accept an agency's conclusions without taking into account facts tending to dissipate probable cause. Subsection (b) of article 2.251 allegedly fails to cure this defect because it forces local officers to make removal-status determinations, running afoul of Arizona and Farmers Branch. This argument proves too much. Implicitly, the plaintiffs' argument would invalidate any compliance with ICE detainers: officers must make their own removal-status determinations to satisfy the Fourth Amendment but officers cannot make such determinations under Arizona and Farmers Branch.
The plaintiffs' argument misconstrues the relevant precedents. Neither
Arizona
nor
Farmers Branch
undermines subsection (b).
Arizona
denied state officers the power to unilaterally make removability determinations because "[a] decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States" and such decisions "touch on foreign relations and must be made with one voice."
Arizona,
The plaintiffs are also wrong to suggest that the ICE-detainer mandate requires officers to ignore facts that negate probable cause. Subsection (b) should cover the majority of cases where facts negate probable cause: indeed, it is difficult to imagine what facts other than valid forms of identification would conclusively negate ICE's probable cause determination. 23 Assuming *357 arguendo that there could be such facts, Texas and the United States as amicus dispute that local officers would be required to ignore them. They argue that the verbs "[c]omply with, honor, and fulfill" require cooperation - not blind obedience. This seems reasonable given the assumption that ICE should have no interest in detaining aliens when local officials communicate that the original determination was flawed. Nevertheless, even if the mandate could hypothetically cause a violation, this possibility is not enough to substantiate a facial challenge.
Likewise, none of the cases the plaintiffs cite indicates that the detainer mandate is facially invalid. In
Santos v. Frederick County Board of Commissioners,
the Fourth Circuit held that, "absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law."
Last, the plaintiffs argue that the mandate is facially invalid because it does not expressly require a probable cause determination. ICE policy may change, the plaintiffs argue. If that happens, compliance with subsequent detainer requests may violate the Fourth Amendment. In our view, this argument - that ICE policy may change - confirms that facial relief is inappropriate. It is true that ICE might change its policy such that compliance with ICE's requests would violate the Fourth Amendment. It is also true that, under the current scheme, seizures may occur where probable cause was lacking. But this is no basis for facial relief under Salerno and Patel. If ICE policy changes or if violations occur, the proper mechanism is an as-applied, not a facial challenge.
IV. "Materially Limits"
Section 752.053(a)(1)-(2) forbids any "policy" or "pattern or practice" that "prohibits or materially limits" the enforcement of the immigration laws.
See
Tex. Gov't Code § 752.053(a)(1)-(2). The plaintiffs contend that the phrase "materially limits" is unconstitutionally vague on its face. In
United States v. Gonzalez-Longoria,
this court affirmed the exacting standard for establishing facial vagueness: "When a provision is so vague that it specifies `no standard of conduct ... at all,' then the provision `simply has no core,' and will be vague as applied to anyone - that is, it will be facially vague."
Gonzalez-Longoria
addressed the significance of
Johnson v. United States,
which had recently invalidated the residual clause of the Armed Career Criminal Act as unconstitutionally vague. ___ U.S. ___
Although the plaintiffs argue that context exacerbates the vagueness of "materially limits," the opposite is true. The status-inquiry, information-sharing, and assistance-cooperation provisions of Section 752.053(b)(1)-(3) provide specific examples of what conduct local entities cannot limit. Thus, if a policy expressly limits one of these activities, then the question for a court is whether such a limitation is "material." The inclusion of this qualifier makes the challenged phrase more definite, not less, and materiality standards are routine in the law. See, e.g., Fed. R. Evid. 807(a)(2). Materiality is a familiar component of fraud claims, and the full phrase "materially limit" appears in federal securities law, 15 U.S.C. § 77d-1(b)(1)(H)(i), and in the ABA model rules of professional conduct. Model R. of Prof'l. Conduct 1.7(a)(2), 1.10(a)(1). Materiality is not a vague concept, especially to actors subject to these provisions who are law enforcement or government officers.
The plaintiffs contend that Texas cannot specify any applications of the "materially limits" provision that are not flat prohibitions - and thus already covered by the word "prohibits." We disagree. Texas identifies the Maverick County Sheriff's Office policy of refusing to "participate or cooperate in the arrests of individuals for civil immigration violations." This policy does not actually flatly prohibit cooperation; it limits the circumstances in which cooperation is permissible: criminal but not civil violations. Texas also cites El Cenizo's Mayor, who contended that the city's policy "limits the situations in which [city] ... officials engage in immigration enforcement or collect and disseminate such information." This, too, seems like a policy best characterized as
limiting
and not
prohibiting
the enforcement of immigration laws. Almost any limitation could be recharacterized as a partial prohibition. That is likely why SB4 includes both terms. Otherwise, supporters of the policies just described could argue that their policies
limited
but did not actually
prohibit
immigration enforcement. Thus, the putative redundancy between "prohibits" and "materially limits" likely reflects "a sense of belt-and-suspenders caution" on the part of the legislature.
King v. Burwell,
___ U.S. ___,
Texas also proposes several narrowing constructions. First, Texas suggests that a *359 material limit must concern "the enforcement of immigration laws" and so policies relating to "general matters like overtime and patrolling locations" would not be covered. Under this limitation, Texas argues, SB4 will "not prohibit immigration-neutral local policies regarding bona fide resource allocation." Second, Texas states that a "policy cannot `materially limit' immigration-law enforcement if it prohibits actions that the locality already lacks the power to lawfully perform."
These limitations are reasonable. But the nature of the plaintiffs' lawsuit - a facial, pre-enforcement challenge - makes us unwilling to adopt limiting constructions that are not strictly necessary to preserve the constitutionality of a statute. In general, as-applied challenges brought in post-enforcement proceedings are "the basic building blocks of constitutional adjudication."
See Gonzales v. Carhart,
V. Commandeering Challenge
The plaintiffs raise an argument on appeal that was not presented to the district court. They begin by pointing out that the Tenth Amendment prevents the Federal Government from forcing local governments to enforce federal immigration laws. Then they state that the preemption doctrine prevents Texas from passing direct immigration-enforcement regulation. From these premises, the plaintiffs argue that, under the Texas Constitution, the state cannot preempt cities' home-rule authority without passing the sort of direct immigration regulation that would be preempted by federal law.
This argument is waived because it was not adequately raised below.
Keelan v. Majesco Software, Inc.,
CONCLUSION
The plaintiffs have not made a showing that they are likely to succeed on the merits of any of their constitutional claims except as to the enforcement of Tex. Gov't Code § 752.053(a)(1)'s "endorse" provision against elected officials. The foregoing discussion *360 demonstrates there is no merit in their remaining arguments, and none of the other challenged provisions of SB4 facially violate the Constitution. Accordingly, we AFFIRM in part the district court's preliminary injunction, VACATE in large part and remand with instructions to DISMISS the vacated injunction provisions.
For convenience, these three provisions will be referred to as the "status-inquiry," "information-sharing," and "assistance-cooperation" provisions.
See U.S. Immigration and Customs Enforcement, Policy No. 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at https://perma.cc/T6FJ-FXL3.
See U.S. Department of Homeland Security, Immigration Detainer - Notice of Action, DHS Form I-247A (3/17), available at https://perma.cc/RH4C-5D8Q.
The term "287(g)" refers to the section of the Immigration and Nationality Act that authorized these agreements.
Lunn v. Commonwealth,
,
For instance, the Maverick County Sheriff's Office has a policy under which it does "not participate or cooperate in the arrests of individuals for civil immigration violations."
We also note that this provision does not require cooperation unless it is "reasonable or necessary." Tex. Gov't Code § 752.053(b)(3). Thus, as Texas acknowledges, this provision does not generally preclude immigration-neutral policies regarding bona fide resource allocation - e.g., policies regarding overtime or patrolling locations.
DHS guidance confirms our interpretation of "otherwise": "[1357(g)(10)(A)] must be read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for state and local officers to ` otherwise cooperate' with the Secretary, without a written agreement. Because the INA thus deems communications referred to in subparagraph (A) to be another form of `cooperation'...." DHS, Guidance on State and Local Governments' Assistance in Immigration Enforcement and Related Matters (emphasis in original), available at https://www.dhs.gov/sites/default/files/publications/guidance-state-localassistance-immigration-enforcement.pdf.
See
Indeed, DHS guidance also negates the plaintiffs' argument that SB4 goes beyond Section 1357(g)(10)(B)'s savings clause by allowing for "assistance" as well as "cooperation." In describing the conduct allowed under the savings clause, the DHS guidance uses a form of the word "assist" 40 times.
See
Because the assistance-cooperation provision does not conflict with federal law, neither do the penalties attached to it. When a state is allowed to substantively regulate conduct, it must be able to impose reasonable penalties to enforce those regulations.
See, e.g., Whiting,
The plaintiffs also rely on the fact that the Supreme Court merely held that Arizona's status-inquiry provision was not susceptible to a facial challenge. But, of course, this case also involves a facial challenge.
The plaintiffs also challenge subsections (a)(1) and (a)(2), which broadly forbid any "policy" or "pattern or practice" that "prohibits or materially limits the enforcement of immigration laws." They argue that these subsections may authorize conduct that is impermissible under the federal savings clause,
See The Oxford English Dictionary (online ed. 2017), available at http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid.
See The American Heritage Dictionary of the English Language (online ed. 2017) (defining "endorse" as "[t]o express approval of... especially by public statement"), available at https://ahdictionary.com/word/search.html?q=endorse; Webster's New World College Dictionary (online ed. 2017) (offering "to give approval to; support" as possible definitions of endorse), available at http://www.yourdictionary.com/endorse.
See The Oxford English Dictionary (online ed. 2017) (defining the figurative sense of "endorse" as "[t]o confirm, sanction"), available at http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&is
See The American Heritage Dictionary (online ed. 2017) (defining "sanction" as "[t]o give official authorization or approval to"), available at https://andictionary.com/word/search.html?q=sanction; The Oxford English Dictionary (online ed. 2017) (defining "sanction" as "[t]o ratify or confirm by sanction or solemn enactment; to invest with legal or sovereign authority; to make valid or binding"), available at http://www.oed.com/view/Entry/170491?rskey=VpyOmv&result=2&isAdvanced=false#eid.
The plaintiffs are incorrect that related provisions of SB4 bear on the First Amendment argument. Exemptions from SB4 when an officer works off-duty for an exempt entity like a charter school,
see, e.g.,
Tex. Gov't Code § 752.052, simply determine whether SB4 applies at all, not what speech it covers. Nor is it significant that "a statement by [a] public officer" may constitute evidence that an entity has violated SB4.
See
It is true that SB4 provides the possibility of indemnification for certain civil lawsuits arising from good-faith compliance with the ICE-detainer mandate.
See
Tex. Gov't Code § 402.0241. But this possibility is cold comfort for the plaintiffs when the statute leaves it to Texas to determine whether an entity has engaged in "good-faith compliance" warranting indemnification.
See
We pretermit the question whether the Fourth Amendment even applies to many aliens subject to ICE-detainer requests. See Castro v. Cabrera, , 600 (5th Cir. 2014) (holding that the "entry fiction" applies to preclude illegal aliens' Fourth Amendment detention claims); United States v. Portillo-Munoz, , 440 (5th Cir. 2011) (noting that the Supreme Court has never "held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally"); but see Martinez-Aguero v. Gonzalez, , 624-25 (5th Cir. 2006) (holding that an alien with substantial connections to the United States "may bring a Bivens claim for unlawful arrest and the excessive use of force under the Fourth Amendment").
The plaintiffs' suggestion that "an ICE agent may indicate simply that DHS intends to assume custody of the detainee to `make an admissibility determination'" misrepresents Form I-247A. The box they mention applies only when DHS has transferred an alien to the local authority's custody for a proceeding or investigation and thus "intends to resume custody of the alien to complete processing and/or make an admissibility determination." See ICE Form I-247A, available at https://perma.cc/RH4C-5D8Q.
For these reasons, we also disavow any district court decisions that have suggested the Fourth Amendment requires probable cause of criminality in the immigration context.
See Mercado v. Dallas Cty.,
Because we refuse to interpret subsection (b) as authorizing unilateral removability determinations, we also reject the plaintiffs' argument that the ICE-detainer mandate is conflict preempted. In doing so, we note that Section 1357(g)(10)(B) expressly mentions cooperation in "identification" and "detention."
It is important to remember that an adult alien commits a federal crime if he fails to "at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card" evidencing his lawful status.
Reference
- Full Case Name
- CITY OF EL CENIZO, TEXAS; Raul L. Reyes, Mayor, City of El Cenizo; Tom Schmerber, County Sheriff; Mario A. Hernandez, Maverick County Constable Pct. 3-1; League of United Latin American Citizens; Maverick County, Plaintiffs-Appellees Cross-Appellants City of Austin, Judge Sarah Eckhardt, in Her Official Capacity as Travis County Judge; Sheriff Sally Hernandez, in Her Official Capacity as Travis County Sheriff; Travis County; City of Dallas, Texas; The City of Houston, Intervenors-Plaintiffs-Appellees Cross-Appellants v. State of TEXAS; Greg Abbott, Governor of the State of Texas, in His Official Capacity, Ken Paxton, Texas Attorney General, Defendants-Appellants Cross-Appellees El Paso County; Richard Wiles, Sheriff of El Paso County, in His Official Capacity; Texas Organizing Project Education Fund; Jo Anne Bernal, El Paso County Attorney in Her Official Capacity; MOVE San Antonio, Plaintiffs-Appellees Cross-Appellants Texas Association of Hispanic County Judges and County Commissioners, Intervenor-Plaintiff-Appellee Cross-Appellant v. State of Texas; Greg Abbott, Governor; Ken Paxton, Attorney General; Steve McCraw, Director of the Texas Department of Public Safety, Defendants-Appellants Cross-Appellees City of San Antonio; Bexar County, Texas ; Rey A. Saldana, in His Official Capacity as San Antonio City Councilmember; Texas Association of Chicanos in Higher Education; La Union Del Pueblo Entero, Incorporated; Workers Defense Project ; City of El Paso, Plaintiffs-Appellees Cross-Appellants City of Austin, Intervenor Plaintiff-Appellees Cross-Appellants v. State of Texas; Ken Paxton, Sued in His Official Capacity as Attorney General of Texas; Greg Abbott, Sued in His Official Capacity as Governor of the State of Texas, Defendants-Appellants Cross-Appellees
- Cited By
- 4 cases
- Status
- Published