At a protest on May 1, immigrants and workers decried SB4 and the state's criminalization of undocumented people.
At a protest on May 1, immigrants and workers decried SB4 and the state's criminalization of undocumented people.
Meagan Flynn

Before SB 4 Is Even Challenged, AG Paxton Asks Federal Judge to Uphold It

Before anybody has even challenged the controversial "anti-sanctuary cities bill," Senate Bill 4, Texas Attorney General Ken Paxton has already done the honors and filed the first lawsuit.

In anticipation of legal action against the what immigrant activist groups have called racist legislation, Paxton has asked a federal judge to uphold the constitutionality of SB 4 before the advocacy groups or others have a chance to file suit. The bill gives federal powers to local law enforcement officers, allowing them to ask about immigration status not just during an arrest, but while detaining a person for any purpose. Should sheriffs or police chiefs adopt any policy that limits cooperation with U.S. Immigration and Customs Enforcement, they can face jail time and be removed from office.

“SB 4 is constitutional, lawful and a vital step in securing our borders,” Paxton said in a statement. “SB 4 guarantees cooperation among federal, state and local law enforcement to protect Texans. Unfortunately, some municipalities and law enforcement agencies are unwilling to cooperate with the federal government and claim that SB 4 is unconstitutional.”

Paxton has sued the City of Austin, all its City Council members, Travis County Sheriff Sally Hernandez and the Mexican-American Legal Defense and Educational Fund. He says in the lawsuit that he chose them as defendants because they have threatened litigation over SB 4, and Sheriff Hernandez's current policy that limits cooperation with ICE is at odds with the new law (which doesn't actually go into effect until September). He's allowed to preemptively sue under what's called the Declaratory Judgment Act; the purpose is to avoid multiple lawsuits — and it also allows the state to "frame the litigation's narrative," said Geoffrey Hoffman, director of the University of Houston Law Center Immigration Clinic.

Thomas A. Saenz, president and general counsel of MALDEF, called Paxton's lawsuit a "frivolous legal action."

"Rather than wait for aggrieved individuals and entities to pursue their many constitutional challenges to SB 4, the state bespeaks its own apparent high anxiety about the legality of [Governor Greg] Abbott’s Folly, SB 4, by seeking a preemptive strike through this lawsuit," he said in a statement.

Sheriff Hernandez was faced with the wrath of Governor Greg Abbott earlier this year after she announced the new policy around ICE detainers, which are placed on suspected undocumented immigrants in county jails and allow them to be transferred to ICE's custody once their cases are adjudicated. (Under federal law — and in spite of SB 4 — sheriffs aren't required to honor ICE detainers.) Hernandez said she would no longer honor ICE detainers unless the feds had a warrant signed by a judge, or unless the person was charged with murder, aggravated sexual assault or continuous smuggling. As a result, Abbott stripped Travis County of more than $1 million in criminal justice grant funding — yet Hernandez held her ground.

Hernandez has the support of Austin's mayor and city council members — among them Greg Casar, who was arrested for protesting SB 4 last week at a sit-in on the Capitol grounds (and who hinted during a news call Monday that he and others were exploring possible legal action against the bill). Hernandez has the support of Travis County Judge Sarah Eckhardt, who said, "Place of birth alone is no indication that a person is a threat to public safety under the criminal laws of Texas or is in violation of immigration laws of the U.S. I fully support Sheriff Hernandez requiring a warrant to deprive anyone of his or her liberty under the 4th Amendment of the U.S. Constitution."  And, indirectly, Hernandez has the support of a federal judge in Illinois, who ruled last fall that all ICE detainers are invalid without a proper warrant.

Nevertheless, Paxton claims that, unless a federal judge in the Western District of Texas rules that SB 4 is constitutional, Travis County will continue violating state law and endangering Texans because of its ICE policy.

“Governments throughout Texas have a clear duty to continue holding undocumented and suspected criminal aliens pursuant to ICE detainers,” he said. “This is a public safety issue that requires swift resolution. If a Texas sheriff or other law enforcement authority cannot lawfully honor an ICE detainer, dangerous people will slip through the cracks of the justice system and back into our communities. As a nation of laws, it is imperative that SB 4 is fully honored in Texas.”

Saenz of MALDEF left Paxton and Abbot with this:

"We will see you in court, Governor Abbott. In the meantime, we hope that both the governor and the attorney general will seek treatment for an apparent problem with premature litigation."

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