1 00:00:00,080 --> 00:00:02,840 Speaker 1: The massive flood from Hurricane Harvey isn't the only news 2 00:00:02,840 --> 00:00:05,640 Speaker 1: out of Texas. A federal judge in San Antonio on 3 00:00:05,680 --> 00:00:08,600 Speaker 1: Wednesday at least temporarily blocked core parts of a state 4 00:00:08,680 --> 00:00:11,639 Speaker 1: law that would crack down on so called sanctuary cities 5 00:00:11,680 --> 00:00:15,840 Speaker 1: and force greater cooperation with federal immigration officials. Judge Orlando 6 00:00:15,880 --> 00:00:19,280 Speaker 1: Garcia said much of the measure probably violates the Constitution 7 00:00:19,480 --> 00:00:23,639 Speaker 1: and federal immigration law. Garcia bill Clinton appoint He said 8 00:00:23,640 --> 00:00:27,280 Speaker 1: the provisions will erode public trust and make many communities 9 00:00:27,280 --> 00:00:31,000 Speaker 1: in neighborhoods less safe. The state's largest cities, including Houston, 10 00:00:31,000 --> 00:00:34,199 Speaker 1: were among the challengers, and Texas has vowed to appeal. 11 00:00:35,000 --> 00:00:38,040 Speaker 1: Our guests to sort this out and explain its significance. 12 00:00:38,120 --> 00:00:40,400 Speaker 1: Are Rick Sue He's a professor at the University of 13 00:00:40,400 --> 00:00:44,440 Speaker 1: Buffalo Buffalo School of Law. And Leon Fresco, a partner 14 00:00:44,479 --> 00:00:49,000 Speaker 1: at Holland and Night. Rick. Welcome to you both, Rick, Uh, 15 00:00:49,159 --> 00:00:51,640 Speaker 1: Let's start at kind of at a general level here, 16 00:00:51,640 --> 00:00:53,720 Speaker 1: because there are a lot of specific provisions, and we'll 17 00:00:53,760 --> 00:00:56,800 Speaker 1: we'll get into some of the specifics. But why did 18 00:00:56,800 --> 00:00:59,320 Speaker 1: Texas pass this measure? What did it say it was 19 00:00:59,360 --> 00:01:03,640 Speaker 1: trying to accomplish? Um. More specifically, it's trying to go 20 00:01:03,720 --> 00:01:06,520 Speaker 1: after a so called sanctuary cities. And of course this 21 00:01:06,600 --> 00:01:10,160 Speaker 1: issue of sanctuary cities, though not necessarily knew, has really 22 00:01:10,160 --> 00:01:12,760 Speaker 1: sort of taken on front stage and the immigration debates 23 00:01:12,800 --> 00:01:19,040 Speaker 1: in recent years. UM. What precipitated directly was the actions 24 00:01:19,280 --> 00:01:23,560 Speaker 1: in the policies passed by Travis County, which is compasses Austin, 25 00:01:24,280 --> 00:01:26,640 Speaker 1: which really raised the ire of the governor and many 26 00:01:26,680 --> 00:01:30,560 Speaker 1: of the state legislatures. And as the court case notes, 27 00:01:30,880 --> 00:01:35,440 Speaker 1: UH much of us before was directed towards attacking particular 28 00:01:35,520 --> 00:01:38,480 Speaker 1: local officials UH and with with with certain number of 29 00:01:38,480 --> 00:01:43,120 Speaker 1: penalties for not participating in immigration enforcements. Leon. The law 30 00:01:43,200 --> 00:01:46,800 Speaker 1: was so divisive that one Democratic legislator even pushed a 31 00:01:46,840 --> 00:01:50,360 Speaker 1: Republican legislator on the final day of the session. So 32 00:01:50,400 --> 00:01:53,760 Speaker 1: how much of a blow is this to Texas Republicans 33 00:01:53,960 --> 00:01:57,960 Speaker 1: and the Trump administration that backed it. Well, I would 34 00:01:57,960 --> 00:02:01,600 Speaker 1: say this is a commendous setback. The standpoint that all 35 00:02:01,640 --> 00:02:05,360 Speaker 1: across the country the issue of local law enforcements being 36 00:02:05,400 --> 00:02:10,080 Speaker 1: litigated in various different flora, whether it's removing d o 37 00:02:10,160 --> 00:02:14,040 Speaker 1: J grant money from localities that don't want to create 38 00:02:14,080 --> 00:02:18,239 Speaker 1: immigration enforce someone who enactim in grace and enforcement policies 39 00:02:18,320 --> 00:02:21,320 Speaker 1: to UM to this case in Texas, which is a 40 00:02:21,400 --> 00:02:25,840 Speaker 1: state driven initiative, to other cases where the cities themselves 41 00:02:25,919 --> 00:02:28,920 Speaker 1: are challenging provisions of the of the of what the 42 00:02:28,960 --> 00:02:31,360 Speaker 1: federal government is trying to do. So all of the 43 00:02:32,040 --> 00:02:35,480 Speaker 1: all of the different litigation that's happening across the country 44 00:02:35,800 --> 00:02:40,560 Speaker 1: can take this signal about the restraints that the courts 45 00:02:40,560 --> 00:02:42,959 Speaker 1: are now saying are going to be placed on any 46 00:02:43,000 --> 00:02:46,880 Speaker 1: effort to deputize from buying either the federal government or 47 00:02:46,960 --> 00:02:52,280 Speaker 1: now the state government to deputize localities to engine immigration enforcement. Rick, 48 00:02:52,360 --> 00:02:55,040 Speaker 1: Let's talk a little bit about the specifics of this ruling. 49 00:02:55,919 --> 00:02:59,600 Speaker 1: What would you say is the most important part of it. Uh, 50 00:03:00,080 --> 00:03:03,480 Speaker 1: What's vital to recognize is the degree to which the 51 00:03:03,480 --> 00:03:06,800 Speaker 1: court really called out uh S before, which is the 52 00:03:06,840 --> 00:03:09,120 Speaker 1: state law that we're talking about in this case, for 53 00:03:09,200 --> 00:03:12,320 Speaker 1: how extraordinary it actually is, and there are various components 54 00:03:12,320 --> 00:03:14,560 Speaker 1: that I think really made it a strong case, at 55 00:03:14,639 --> 00:03:17,480 Speaker 1: least in the eyes of the judge in this case. UH. 56 00:03:17,520 --> 00:03:21,920 Speaker 1: The degree to which this particular penalty goes after individual 57 00:03:22,320 --> 00:03:27,440 Speaker 1: policymakers and lawmakers and these jurisdictions with civil penalties, criminal penalties, 58 00:03:27,520 --> 00:03:31,040 Speaker 1: and removal from office, along with the fact that UH 59 00:03:31,680 --> 00:03:34,280 Speaker 1: it really removes a lot of discretion and gets us 60 00:03:34,280 --> 00:03:37,880 Speaker 1: back into the debate of whether or not the local 61 00:03:37,920 --> 00:03:42,120 Speaker 1: and state governments have the power to enforce civil immigration laws, 62 00:03:42,840 --> 00:03:45,360 Speaker 1: especially in light of the fact that many of the 63 00:03:45,440 --> 00:03:50,280 Speaker 1: requests made by the federal government lack um UH probably 64 00:03:50,320 --> 00:03:53,480 Speaker 1: cause to issue a warrant, which is traditionally the constitution 65 00:03:53,560 --> 00:03:56,840 Speaker 1: requirement for local law enforcement to arrest and then detain 66 00:03:56,920 --> 00:04:02,120 Speaker 1: someone in custody. LEON talk specific about detain a requests 67 00:04:02,160 --> 00:04:07,280 Speaker 1: and how they work and what cities are doing with them. Sure, 68 00:04:07,560 --> 00:04:12,240 Speaker 1: so the in the ideal world of how this administration 69 00:04:12,360 --> 00:04:16,040 Speaker 1: would want to run immigration enforcement, what they would want 70 00:04:16,240 --> 00:04:18,960 Speaker 1: is whenever any human being in the United States is 71 00:04:19,000 --> 00:04:23,080 Speaker 1: a resid that individual's fingerprints are taken, those fingerprints are 72 00:04:23,080 --> 00:04:26,200 Speaker 1: set to an FBI database, and p I actually shares 73 00:04:26,320 --> 00:04:29,440 Speaker 1: those fingerprints with ICE as part of an arrangement that 74 00:04:29,560 --> 00:04:33,680 Speaker 1: the FBI has with Immigration Customs Enforcements. And so from 75 00:04:33,720 --> 00:04:37,840 Speaker 1: that fingerprint sharing, I determine that there are individuals with 76 00:04:38,000 --> 00:04:41,280 Speaker 1: fingerprints they're receiving that they want to go and try 77 00:04:41,360 --> 00:04:45,240 Speaker 1: to find when they get released from these facilities. But 78 00:04:45,320 --> 00:04:48,560 Speaker 1: what happens is ICE isn't in all the thousands of 79 00:04:48,600 --> 00:04:51,680 Speaker 1: counties across America, and so they need time to get 80 00:04:51,720 --> 00:04:54,960 Speaker 1: to the facilities before individuals are released. And so what 81 00:04:55,080 --> 00:04:57,080 Speaker 1: I want to do is to be able to tell 82 00:04:57,160 --> 00:05:00,560 Speaker 1: all of these local jails to leave hold onto these individuals. 83 00:05:00,600 --> 00:05:03,320 Speaker 1: That's what a detainer is. That the piece of paper 84 00:05:03,360 --> 00:05:06,000 Speaker 1: that says, please all about to these individuals for forty 85 00:05:06,040 --> 00:05:09,080 Speaker 1: eight more hours than what you would ordinarily hold on 86 00:05:09,240 --> 00:05:11,839 Speaker 1: to them for to give us time to get them 87 00:05:12,080 --> 00:05:15,280 Speaker 1: and place them into immigration custody. We're talking about a 88 00:05:15,360 --> 00:05:18,200 Speaker 1: ruling by a federal judge in San Antonio on Wednesday 89 00:05:18,279 --> 00:05:22,200 Speaker 1: that at least temporarily blocked much of a Texas law 90 00:05:22,560 --> 00:05:25,680 Speaker 1: that would crack down on so called sanctuary cities. And 91 00:05:25,720 --> 00:05:28,760 Speaker 1: our guests are Leon Fresco of Holland Knight and Rick 92 00:05:28,839 --> 00:05:32,400 Speaker 1: Seu of the University of Buffalo School of Law. Rick 93 00:05:32,480 --> 00:05:36,120 Speaker 1: a moment ago Leone was talking about this notion of 94 00:05:36,120 --> 00:05:42,400 Speaker 1: of detaining UH undocumented immigrants and and sort of explaining 95 00:05:42,440 --> 00:05:45,240 Speaker 1: that what ICE wants federal immigration authorities, what they want 96 00:05:45,320 --> 00:05:47,640 Speaker 1: sometimes is, because they can't be everywhere, is for local 97 00:05:47,680 --> 00:05:51,520 Speaker 1: authorities to hang on to somebody for maybe forty eight hours, 98 00:05:51,600 --> 00:05:54,360 Speaker 1: so that federal officials have time to get there and 99 00:05:54,440 --> 00:05:59,279 Speaker 1: detain the person. UH. This law that was blocked would 100 00:05:59,279 --> 00:06:03,320 Speaker 1: have required local officials to do more to cooperate with ICE. 101 00:06:04,040 --> 00:06:07,080 Speaker 1: What did the judge find was wrong with that provision? 102 00:06:07,920 --> 00:06:11,000 Speaker 1: So with regards to the particular detainer issue, it it 103 00:06:11,080 --> 00:06:13,599 Speaker 1: gets back to a bigger issue that's been litigating lots 104 00:06:13,600 --> 00:06:16,400 Speaker 1: of courts. As was mentioned before, it has to do 105 00:06:16,480 --> 00:06:19,960 Speaker 1: with whether or not the local lawforcement agencies actually had 106 00:06:19,960 --> 00:06:24,880 Speaker 1: the power to detain these particular individuals passed the time 107 00:06:24,960 --> 00:06:29,560 Speaker 1: in which UH any local cause to detain them has expired. UM, 108 00:06:29,600 --> 00:06:31,520 Speaker 1: and there actually has been in many lawsuits that have 109 00:06:32,160 --> 00:06:35,880 Speaker 1: risen out of this UH precisely because the detainer requests 110 00:06:35,880 --> 00:06:39,680 Speaker 1: itself doesn't require probable cause or that actually the individual 111 00:06:39,880 --> 00:06:42,360 Speaker 1: is an a document immigrant. And the reason why many 112 00:06:42,400 --> 00:06:46,719 Speaker 1: counties pulled away from following federal detainer requests was because 113 00:06:46,760 --> 00:06:49,919 Speaker 1: of a number of lawsuits in which United States citizens 114 00:06:49,920 --> 00:06:53,760 Speaker 1: who have been detained because of incorrect information from the 115 00:06:53,800 --> 00:06:57,480 Speaker 1: federal government ended up suing the counties themselves UH, and 116 00:06:57,520 --> 00:06:59,680 Speaker 1: the counties were held liable because the court said it 117 00:06:59,720 --> 00:07:03,040 Speaker 1: was your decision to follow the detainers. The detainer was 118 00:07:03,240 --> 00:07:06,120 Speaker 1: inappropriate and in this case it is your liability to 119 00:07:06,160 --> 00:07:11,600 Speaker 1: pay for those damages. Leon Latino and civil rights groups 120 00:07:11,680 --> 00:07:14,520 Speaker 1: called this is show me your Papers law that echoes 121 00:07:14,560 --> 00:07:19,040 Speaker 1: the one that was enacted by Arizona. In George Garcia 122 00:07:19,240 --> 00:07:23,720 Speaker 1: partially upheld that. Tell us what he ruled right, Well, 123 00:07:23,760 --> 00:07:26,400 Speaker 1: the judge sort of split it up and he said 124 00:07:26,880 --> 00:07:30,880 Speaker 1: that the part that the Supreme Court allowed in Arizona, 125 00:07:31,440 --> 00:07:35,000 Speaker 1: he's also allowed in Texas, which is the requirement that 126 00:07:35,640 --> 00:07:40,320 Speaker 1: local officials not be banned from sharing information with ICE. 127 00:07:40,400 --> 00:07:44,640 Speaker 1: A usure of sharing information has continued to be an 128 00:07:44,680 --> 00:07:49,080 Speaker 1: area where courts have not wanted to restrict UH the 129 00:07:49,160 --> 00:07:53,400 Speaker 1: ability of people of local law enforcement to share information 130 00:07:53,440 --> 00:07:56,280 Speaker 1: with ICE. And so the court said that that provision 131 00:07:56,520 --> 00:08:00,160 Speaker 1: as before is fine. The one that required the UH 132 00:08:00,240 --> 00:08:04,720 Speaker 1: that that that banned locality from saying you can't share information. 133 00:08:04,880 --> 00:08:10,640 Speaker 1: So that's part continued. But the part where the local 134 00:08:10,680 --> 00:08:15,280 Speaker 1: officials are prevented to be deputized to actually engage in 135 00:08:15,360 --> 00:08:19,520 Speaker 1: immigration enforcement was viewed by the judge as excessive and 136 00:08:19,760 --> 00:08:24,040 Speaker 1: violence is both preempted by the Immigration and Nationality Act 137 00:08:24,160 --> 00:08:26,800 Speaker 1: because there is a provision for how you get decide 138 00:08:27,640 --> 00:08:31,680 Speaker 1: local law enforcement and also potentially violated of the process. 139 00:08:31,760 --> 00:08:35,040 Speaker 1: So that's part where they're sort of an active immigration 140 00:08:35,160 --> 00:08:41,120 Speaker 1: enforcement component by the localities. That part was actually banned. Rick. 141 00:08:41,200 --> 00:08:43,000 Speaker 1: One other provision I want to ask you about, I 142 00:08:43,000 --> 00:08:46,520 Speaker 1: think you alluded to it earlier. Are these penalties that 143 00:08:46,600 --> 00:08:50,360 Speaker 1: could have been imposed both civil and criminal, on local 144 00:08:50,400 --> 00:08:53,640 Speaker 1: officials who didn't comply with parts of the law. Tell 145 00:08:53,679 --> 00:08:55,480 Speaker 1: me a little bit about that. Is that a novel 146 00:08:56,040 --> 00:08:58,280 Speaker 1: requirement that Texas was trying to impose? And what did 147 00:08:58,720 --> 00:09:01,880 Speaker 1: Judge Garcia say about them? Yeah, so the penalties are 148 00:09:01,960 --> 00:09:04,800 Speaker 1: relatively novel. There has been other cases with regard to 149 00:09:04,840 --> 00:09:08,480 Speaker 1: politicize issues like gun control, where state legislations are moving 150 00:09:08,520 --> 00:09:12,320 Speaker 1: to individually penalize officials who are involved in this, but 151 00:09:12,880 --> 00:09:16,840 Speaker 1: none go as far or as extreme as this particular law. Um, 152 00:09:16,880 --> 00:09:20,240 Speaker 1: the penalties themselves were part of a broader ruling, and 153 00:09:20,280 --> 00:09:22,920 Speaker 1: what the court essentially said is because of the standard 154 00:09:22,920 --> 00:09:26,520 Speaker 1: of conduct that the law requires is so broad and vague, 155 00:09:27,200 --> 00:09:30,040 Speaker 1: you can endorse a policy and maybe speak out on 156 00:09:30,040 --> 00:09:33,400 Speaker 1: behalf of a policy that might limit in immigration enforcement, 157 00:09:33,840 --> 00:09:37,560 Speaker 1: uh materially limit pattern practice that to have such a 158 00:09:37,559 --> 00:09:43,559 Speaker 1: strong penalty attached to vague prohibitions would restrict in many ways, uh, 159 00:09:43,760 --> 00:09:46,400 Speaker 1: most under, on the one hand, the First Amendment rights 160 00:09:46,440 --> 00:09:49,720 Speaker 1: of these individuals to advocate for certain policies. UH. And 161 00:09:49,840 --> 00:09:52,800 Speaker 1: also another concern was just that they were vague, that 162 00:09:52,840 --> 00:09:56,520 Speaker 1: the individuals were not unnoticed with regard to what they 163 00:09:56,559 --> 00:09:57,959 Speaker 1: should or should not do, and it may have a 164 00:09:58,040 --> 00:10:01,280 Speaker 1: chilling effect on what local policymakers do. Both of these 165 00:10:01,320 --> 00:10:04,439 Speaker 1: are really novel that they're often not seen in state 166 00:10:04,480 --> 00:10:08,839 Speaker 1: efforts to let's say, mandate a uniform policy in a state. UH. 167 00:10:08,880 --> 00:10:13,640 Speaker 1: These seem to be directly attacking individual policymakers themselves. And 168 00:10:13,679 --> 00:10:16,320 Speaker 1: the court noted that Rick, and we just about have 169 00:10:16,400 --> 00:10:20,520 Speaker 1: a minute left. Tell us what you think about the 170 00:10:20,600 --> 00:10:23,960 Speaker 1: chances for appeal. The state Attorney General says they're going 171 00:10:23,960 --> 00:10:26,920 Speaker 1: to appeal it to the Fifth Circuit, which is known 172 00:10:26,960 --> 00:10:31,080 Speaker 1: as a conservative circuit. Yeah. So it's slightly different in 173 00:10:31,120 --> 00:10:33,079 Speaker 1: this case because it has to deal with the state 174 00:10:33,080 --> 00:10:37,200 Speaker 1: involved in an immigration enforcement UH. And it's the previous precedents, 175 00:10:37,200 --> 00:10:40,040 Speaker 1: I've mostly talked about federal power, and in this case 176 00:10:40,080 --> 00:10:42,800 Speaker 1: this is a slightly different. I do think that some 177 00:10:42,840 --> 00:10:44,960 Speaker 1: of the things that George Garcia noted, and like I 178 00:10:44,960 --> 00:10:48,000 Speaker 1: said before, the extremity and the unprecedented nature of this 179 00:10:48,080 --> 00:10:52,160 Speaker 1: particular law itself may raise the ire of the Fifth 180 00:10:52,200 --> 00:10:55,040 Speaker 1: Circuit as well. Uh, They're just very unique, even if 181 00:10:55,040 --> 00:10:58,520 Speaker 1: you take out the immigration politics of it all. Uh, 182 00:10:58,559 --> 00:11:00,560 Speaker 1: they're very unique and what they're trying to do and 183 00:11:00,600 --> 00:11:05,120 Speaker 1: does raise constitutional concerns well. At case almost certainly will 184 00:11:05,320 --> 00:11:07,760 Speaker 1: go up on appeal to the Fifth Circuit, which is 185 00:11:07,840 --> 00:11:12,400 Speaker 1: based in New Orleans. Attorney General Ken Paxton has said 186 00:11:12,440 --> 00:11:14,720 Speaker 1: that he intends to appeal. He's also said that one 187 00:11:14,760 --> 00:11:19,880 Speaker 1: of his issues with this ruling, interestingly was that, uh 188 00:11:19,920 --> 00:11:24,480 Speaker 1: it was decided in San Antonio instead of Austin. Austin, 189 00:11:24,920 --> 00:11:27,240 Speaker 1: ken Paxton said in a statement, is where the people's 190 00:11:27,360 --> 00:11:31,080 Speaker 1: representatives passed the law. State business is conducted in Austin. 191 00:11:31,160 --> 00:11:33,960 Speaker 1: The plaintiffs have no reason to litigate this case in 192 00:11:34,040 --> 00:11:36,640 Speaker 1: San Antonio, So that may also be one of the 193 00:11:36,679 --> 00:11:38,839 Speaker 1: issues that goes up to the Fourth to the Fifth 194 00:11:38,840 --> 00:11:42,959 Speaker 1: Circuit when, as expected, the state appeals. I want to 195 00:11:43,000 --> 00:11:45,839 Speaker 1: thank our guests, Rick SU's, professor at the University of 196 00:11:45,840 --> 00:11:49,160 Speaker 1: Buffalo School of Law, and Leon Fresco, a partner at 197 00:11:49,160 --> 00:11:51,840 Speaker 1: Holland and Knight, talking to US about the new ruling 198 00:11:51,840 --> 00:11:55,560 Speaker 1: out of a federal district judge on Texas sanctuary city law.