WEBVTT - Texas Judge Strikes Down Harsh Sanctuary Cities Ban (Audio) 0:00:00.080 --> 0:00:02.840 The massive flood from Hurricane Harvey isn't the only news 0:00:02.840 --> 0:00:05.640 out of Texas. A federal judge in San Antonio on 0:00:05.680 --> 0:00:08.600 Wednesday at least temporarily blocked core parts of a state 0:00:08.680 --> 0:00:11.639 law that would crack down on so called sanctuary cities 0:00:11.680 --> 0:00:15.840 and force greater cooperation with federal immigration officials. Judge Orlando 0:00:15.880 --> 0:00:19.280 Garcia said much of the measure probably violates the Constitution 0:00:19.480 --> 0:00:23.639 and federal immigration law. Garcia bill Clinton appoint He said 0:00:23.640 --> 0:00:27.280 the provisions will erode public trust and make many communities 0:00:27.280 --> 0:00:31.000 in neighborhoods less safe. The state's largest cities, including Houston, 0:00:31.000 --> 0:00:34.199 were among the challengers, and Texas has vowed to appeal. 0:00:35.000 --> 0:00:38.040 Our guests to sort this out and explain its significance. 0:00:38.120 --> 0:00:40.400 Are Rick Sue He's a professor at the University of 0:00:40.400 --> 0:00:44.440 Buffalo Buffalo School of Law. And Leon Fresco, a partner 0:00:44.479 --> 0:00:49.000 at Holland and Night. Rick. Welcome to you both, Rick, Uh, 0:00:49.159 --> 0:00:51.640 Let's start at kind of at a general level here, 0:00:51.640 --> 0:00:53.720 because there are a lot of specific provisions, and we'll 0:00:53.760 --> 0:00:56.800 we'll get into some of the specifics. But why did 0:00:56.800 --> 0:00:59.320 Texas pass this measure? What did it say it was 0:00:59.360 --> 0:01:03.640 trying to accomplish? Um. More specifically, it's trying to go 0:01:03.720 --> 0:01:06.520 after a so called sanctuary cities. And of course this 0:01:06.600 --> 0:01:10.160 issue of sanctuary cities, though not necessarily knew, has really 0:01:10.160 --> 0:01:12.760 sort of taken on front stage and the immigration debates 0:01:12.800 --> 0:01:19.040 in recent years. UM. What precipitated directly was the actions 0:01:19.280 --> 0:01:23.560 in the policies passed by Travis County, which is compasses Austin, 0:01:24.280 --> 0:01:26.640 which really raised the ire of the governor and many 0:01:26.680 --> 0:01:30.560 of the state legislatures. And as the court case notes, 0:01:30.880 --> 0:01:35.440 UH much of us before was directed towards attacking particular 0:01:35.520 --> 0:01:38.480 local officials UH and with with with certain number of 0:01:38.480 --> 0:01:43.120 penalties for not participating in immigration enforcements. Leon. The law 0:01:43.200 --> 0:01:46.800 was so divisive that one Democratic legislator even pushed a 0:01:46.840 --> 0:01:50.360 Republican legislator on the final day of the session. So 0:01:50.400 --> 0:01:53.760 how much of a blow is this to Texas Republicans 0:01:53.960 --> 0:01:57.960 and the Trump administration that backed it. Well, I would 0:01:57.960 --> 0:02:01.600 say this is a commendous setback. The standpoint that all 0:02:01.640 --> 0:02:05.360 across the country the issue of local law enforcements being 0:02:05.400 --> 0:02:10.080 litigated in various different flora, whether it's removing d o 0:02:10.160 --> 0:02:14.040 J grant money from localities that don't want to create 0:02:14.080 --> 0:02:18.239 immigration enforce someone who enactim in grace and enforcement policies 0:02:18.320 --> 0:02:21.320 to UM to this case in Texas, which is a 0:02:21.400 --> 0:02:25.840 state driven initiative, to other cases where the cities themselves 0:02:25.919 --> 0:02:28.920 are challenging provisions of the of the of what the 0:02:28.960 --> 0:02:31.360 federal government is trying to do. So all of the 0:02:32.040 --> 0:02:35.480 all of the different litigation that's happening across the country 0:02:35.800 --> 0:02:40.560 can take this signal about the restraints that the courts 0:02:40.560 --> 0:02:42.959 are now saying are going to be placed on any 0:02:43.000 --> 0:02:46.880 effort to deputize from buying either the federal government or 0:02:46.960 --> 0:02:52.280 now the state government to deputize localities to engine immigration enforcement. Rick, 0:02:52.360 --> 0:02:55.040 Let's talk a little bit about the specifics of this ruling. 0:02:55.919 --> 0:02:59.600 What would you say is the most important part of it. Uh, 0:03:00.080 --> 0:03:03.480 What's vital to recognize is the degree to which the 0:03:03.480 --> 0:03:06.800 court really called out uh S before, which is the 0:03:06.840 --> 0:03:09.120 state law that we're talking about in this case, for 0:03:09.200 --> 0:03:12.320 how extraordinary it actually is, and there are various components 0:03:12.320 --> 0:03:14.560 that I think really made it a strong case, at 0:03:14.639 --> 0:03:17.480 least in the eyes of the judge in this case. UH. 0:03:17.520 --> 0:03:21.920 The degree to which this particular penalty goes after individual 0:03:22.320 --> 0:03:27.440 policymakers and lawmakers and these jurisdictions with civil penalties, criminal penalties, 0:03:27.520 --> 0:03:31.040 and removal from office, along with the fact that UH 0:03:31.680 --> 0:03:34.280 it really removes a lot of discretion and gets us 0:03:34.280 --> 0:03:37.880 back into the debate of whether or not the local 0:03:37.920 --> 0:03:42.120 and state governments have the power to enforce civil immigration laws, 0:03:42.840 --> 0:03:45.360 especially in light of the fact that many of the 0:03:45.440 --> 0:03:50.280 requests made by the federal government lack um UH probably 0:03:50.320 --> 0:03:53.480 cause to issue a warrant, which is traditionally the constitution 0:03:53.560 --> 0:03:56.840 requirement for local law enforcement to arrest and then detain 0:03:56.920 --> 0:04:02.120 someone in custody. LEON talk specific about detain a requests 0:04:02.160 --> 0:04:07.280 and how they work and what cities are doing with them. Sure, 0:04:07.560 --> 0:04:12.240 so the in the ideal world of how this administration 0:04:12.360 --> 0:04:16.040 would want to run immigration enforcement, what they would want 0:04:16.240 --> 0:04:18.960 is whenever any human being in the United States is 0:04:19.000 --> 0:04:23.080 a resid that individual's fingerprints are taken, those fingerprints are 0:04:23.080 --> 0:04:26.200 set to an FBI database, and p I actually shares 0:04:26.320 --> 0:04:29.440 those fingerprints with ICE as part of an arrangement that 0:04:29.560 --> 0:04:33.680 the FBI has with Immigration Customs Enforcements. And so from 0:04:33.720 --> 0:04:37.840 that fingerprint sharing, I determine that there are individuals with 0:04:38.000 --> 0:04:41.280 fingerprints they're receiving that they want to go and try 0:04:41.360 --> 0:04:45.240 to find when they get released from these facilities. But 0:04:45.320 --> 0:04:48.560 what happens is ICE isn't in all the thousands of 0:04:48.600 --> 0:04:51.680 counties across America, and so they need time to get 0:04:51.720 --> 0:04:54.960 to the facilities before individuals are released. And so what 0:04:55.080 --> 0:04:57.080 I want to do is to be able to tell 0:04:57.160 --> 0:05:00.560 all of these local jails to leave hold onto these individuals. 0:05:00.600 --> 0:05:03.320 That's what a detainer is. That the piece of paper 0:05:03.360 --> 0:05:06.000 that says, please all about to these individuals for forty 0:05:06.040 --> 0:05:09.080 eight more hours than what you would ordinarily hold on 0:05:09.240 --> 0:05:11.839 to them for to give us time to get them 0:05:12.080 --> 0:05:15.280 and place them into immigration custody. We're talking about a 0:05:15.360 --> 0:05:18.200 ruling by a federal judge in San Antonio on Wednesday 0:05:18.279 --> 0:05:22.200 that at least temporarily blocked much of a Texas law 0:05:22.560 --> 0:05:25.680 that would crack down on so called sanctuary cities. And 0:05:25.720 --> 0:05:28.760 our guests are Leon Fresco of Holland Knight and Rick 0:05:28.839 --> 0:05:32.400 Seu of the University of Buffalo School of Law. Rick 0:05:32.480 --> 0:05:36.120 a moment ago Leone was talking about this notion of 0:05:36.120 --> 0:05:42.400 of detaining UH undocumented immigrants and and sort of explaining 0:05:42.440 --> 0:05:45.240 that what ICE wants federal immigration authorities, what they want 0:05:45.320 --> 0:05:47.640 sometimes is, because they can't be everywhere, is for local 0:05:47.680 --> 0:05:51.520 authorities to hang on to somebody for maybe forty eight hours, 0:05:51.600 --> 0:05:54.360 so that federal officials have time to get there and 0:05:54.440 --> 0:05:59.279 detain the person. UH. This law that was blocked would 0:05:59.279 --> 0:06:03.320 have required local officials to do more to cooperate with ICE. 0:06:04.040 --> 0:06:07.080 What did the judge find was wrong with that provision? 0:06:07.920 --> 0:06:11.000 So with regards to the particular detainer issue, it it 0:06:11.080 --> 0:06:13.599 gets back to a bigger issue that's been litigating lots 0:06:13.600 --> 0:06:16.400 of courts. As was mentioned before, it has to do 0:06:16.480 --> 0:06:19.960 with whether or not the local lawforcement agencies actually had 0:06:19.960 --> 0:06:24.880 the power to detain these particular individuals passed the time 0:06:24.960 --> 0:06:29.560 in which UH any local cause to detain them has expired. UM, 0:06:29.600 --> 0:06:31.520 and there actually has been in many lawsuits that have 0:06:32.160 --> 0:06:35.880 risen out of this UH precisely because the detainer requests 0:06:35.880 --> 0:06:39.680 itself doesn't require probable cause or that actually the individual 0:06:39.880 --> 0:06:42.360 is an a document immigrant. And the reason why many 0:06:42.400 --> 0:06:46.719 counties pulled away from following federal detainer requests was because 0:06:46.760 --> 0:06:49.919 of a number of lawsuits in which United States citizens 0:06:49.920 --> 0:06:53.760 who have been detained because of incorrect information from the 0:06:53.800 --> 0:06:57.480 federal government ended up suing the counties themselves UH, and 0:06:57.520 --> 0:06:59.680 the counties were held liable because the court said it 0:06:59.720 --> 0:07:03.040 was your decision to follow the detainers. The detainer was 0:07:03.240 --> 0:07:06.120 inappropriate and in this case it is your liability to 0:07:06.160 --> 0:07:11.600 pay for those damages. Leon Latino and civil rights groups 0:07:11.680 --> 0:07:14.520 called this is show me your Papers law that echoes 0:07:14.560 --> 0:07:19.040 the one that was enacted by Arizona. In George Garcia 0:07:19.240 --> 0:07:23.720 partially upheld that. Tell us what he ruled right, Well, 0:07:23.760 --> 0:07:26.400 the judge sort of split it up and he said 0:07:26.880 --> 0:07:30.880 that the part that the Supreme Court allowed in Arizona, 0:07:31.440 --> 0:07:35.000 he's also allowed in Texas, which is the requirement that 0:07:35.640 --> 0:07:40.320 local officials not be banned from sharing information with ICE. 0:07:40.400 --> 0:07:44.640 A usure of sharing information has continued to be an 0:07:44.680 --> 0:07:49.080 area where courts have not wanted to restrict UH the 0:07:49.160 --> 0:07:53.400 ability of people of local law enforcement to share information 0:07:53.440 --> 0:07:56.280 with ICE. And so the court said that that provision 0:07:56.520 --> 0:08:00.160 as before is fine. The one that required the UH 0:08:00.240 --> 0:08:04.720 that that that banned locality from saying you can't share information. 0:08:04.880 --> 0:08:10.640 So that's part continued. But the part where the local 0:08:10.680 --> 0:08:15.280 officials are prevented to be deputized to actually engage in 0:08:15.360 --> 0:08:19.520 immigration enforcement was viewed by the judge as excessive and 0:08:19.760 --> 0:08:24.040 violence is both preempted by the Immigration and Nationality Act 0:08:24.160 --> 0:08:26.800 because there is a provision for how you get decide 0:08:27.640 --> 0:08:31.680 local law enforcement and also potentially violated of the process. 0:08:31.760 --> 0:08:35.040 So that's part where they're sort of an active immigration 0:08:35.160 --> 0:08:41.120 enforcement component by the localities. That part was actually banned. Rick. 0:08:41.200 --> 0:08:43.000 One other provision I want to ask you about, I 0:08:43.000 --> 0:08:46.520 think you alluded to it earlier. Are these penalties that 0:08:46.600 --> 0:08:50.360 could have been imposed both civil and criminal, on local 0:08:50.400 --> 0:08:53.640 officials who didn't comply with parts of the law. Tell 0:08:53.679 --> 0:08:55.480 me a little bit about that. Is that a novel 0:08:56.040 --> 0:08:58.280 requirement that Texas was trying to impose? And what did 0:08:58.720 --> 0:09:01.880 Judge Garcia say about them? Yeah, so the penalties are 0:09:01.960 --> 0:09:04.800 relatively novel. There has been other cases with regard to 0:09:04.840 --> 0:09:08.480 politicize issues like gun control, where state legislations are moving 0:09:08.520 --> 0:09:12.320 to individually penalize officials who are involved in this, but 0:09:12.880 --> 0:09:16.840 none go as far or as extreme as this particular law. Um, 0:09:16.880 --> 0:09:20.240 the penalties themselves were part of a broader ruling, and 0:09:20.280 --> 0:09:22.920 what the court essentially said is because of the standard 0:09:22.920 --> 0:09:26.520 of conduct that the law requires is so broad and vague, 0:09:27.200 --> 0:09:30.040 you can endorse a policy and maybe speak out on 0:09:30.040 --> 0:09:33.400 behalf of a policy that might limit in immigration enforcement, 0:09:33.840 --> 0:09:37.560 uh materially limit pattern practice that to have such a 0:09:37.559 --> 0:09:43.559 strong penalty attached to vague prohibitions would restrict in many ways, uh, 0:09:43.760 --> 0:09:46.400 most under, on the one hand, the First Amendment rights 0:09:46.440 --> 0:09:49.720 of these individuals to advocate for certain policies. UH. And 0:09:49.840 --> 0:09:52.800 also another concern was just that they were vague, that 0:09:52.840 --> 0:09:56.520 the individuals were not unnoticed with regard to what they 0:09:56.559 --> 0:09:57.959 should or should not do, and it may have a 0:09:58.040 --> 0:10:01.280 chilling effect on what local policymakers do. Both of these 0:10:01.320 --> 0:10:04.439 are really novel that they're often not seen in state 0:10:04.480 --> 0:10:08.839 efforts to let's say, mandate a uniform policy in a state. UH. 0:10:08.880 --> 0:10:13.640 These seem to be directly attacking individual policymakers themselves. And 0:10:13.679 --> 0:10:16.320 the court noted that Rick, and we just about have 0:10:16.400 --> 0:10:20.520 a minute left. Tell us what you think about the 0:10:20.600 --> 0:10:23.960 chances for appeal. The state Attorney General says they're going 0:10:23.960 --> 0:10:26.920 to appeal it to the Fifth Circuit, which is known 0:10:26.960 --> 0:10:31.080 as a conservative circuit. Yeah. So it's slightly different in 0:10:31.120 --> 0:10:33.079 this case because it has to deal with the state 0:10:33.080 --> 0:10:37.200 involved in an immigration enforcement UH. And it's the previous precedents, 0:10:37.200 --> 0:10:40.040 I've mostly talked about federal power, and in this case 0:10:40.080 --> 0:10:42.800 this is a slightly different. I do think that some 0:10:42.840 --> 0:10:44.960 of the things that George Garcia noted, and like I 0:10:44.960 --> 0:10:48.000 said before, the extremity and the unprecedented nature of this 0:10:48.080 --> 0:10:52.160 particular law itself may raise the ire of the Fifth 0:10:52.200 --> 0:10:55.040 Circuit as well. Uh, They're just very unique, even if 0:10:55.040 --> 0:10:58.520 you take out the immigration politics of it all. Uh, 0:10:58.559 --> 0:11:00.560 they're very unique and what they're trying to do and 0:11:00.600 --> 0:11:05.120 does raise constitutional concerns well. At case almost certainly will 0:11:05.320 --> 0:11:07.760 go up on appeal to the Fifth Circuit, which is 0:11:07.840 --> 0:11:12.400 based in New Orleans. Attorney General Ken Paxton has said 0:11:12.440 --> 0:11:14.720 that he intends to appeal. He's also said that one 0:11:14.760 --> 0:11:19.880 of his issues with this ruling, interestingly was that, uh 0:11:19.920 --> 0:11:24.480 it was decided in San Antonio instead of Austin. Austin, 0:11:24.920 --> 0:11:27.240 ken Paxton said in a statement, is where the people's 0:11:27.360 --> 0:11:31.080 representatives passed the law. State business is conducted in Austin. 0:11:31.160 --> 0:11:33.960 The plaintiffs have no reason to litigate this case in 0:11:34.040 --> 0:11:36.640 San Antonio, So that may also be one of the 0:11:36.679 --> 0:11:38.839 issues that goes up to the Fourth to the Fifth 0:11:38.840 --> 0:11:42.959 Circuit when, as expected, the state appeals. I want to 0:11:43.000 --> 0:11:45.839 thank our guests, Rick SU's, professor at the University of 0:11:45.840 --> 0:11:49.160 Buffalo School of Law, and Leon Fresco, a partner at 0:11:49.160 --> 0:11:51.840 Holland and Knight, talking to US about the new ruling 0:11:51.840 --> 0:11:55.560 out of a federal district judge on Texas sanctuary city law.