There are 11.7 million unauthorized immigrants in the US. Regardless of anyone’s stance on it, the fact is, we let this happen. In Nebraska during the 90s they launched a pilot program targeting employers. It was so effective that the same officials who had called for the crackdown started complaining to Mark Reed, the INS official responsible for the program, that it was slowing down the slaughterhouse lines and affecting the state’s economy. He was also ‘told that the enforcement actions were “pulling the fabric of their community apart.”’¹ His comment on our current situation is that, “If you take hypocrisy and then put in a good dose of unintended consequences, you can see why we are in such a mess.”² And that policing the border is a priority because of the optics of lights, fences, and border patrols agents with guns, but that “Employer sanctions are the real wall.”³ The takeaway is that conservatives claim that they want to fix immigration but can’t live with the implications.

So that’s how we got here, now let’s look at the implications for Austin.

The term ‘Sanctuary City’ is a misnomer. It originated in the 80s when churches in Arizona started providing food, shelter, legal advice and other assistance to people fleeing violence in Central America. Members of the Sanctuary Movement actually did act in violation of federal law and many were charged and put on trial. This is completely different than what is happening in Austin and other places falsely being labelled as ‘Sanctuaries’.

SB4 in the Texas State Senate seeks to require law enforcement agencies (LEAs) in Texas to assist and participate in the prolonged detention, investigation and determination of the legal status of immigrants who come into their custody.

1. Public Safety – Cooperation agreements between ICE and law enforcement agencies have existed for many years. Nevertheless, the agreements are not mandatory, and different law enforcement agencies have been able to choose their level of involvement with ICE officials. Many LEAs throughout the U.S. have chosen to have minimal cooperation with ICE. Though there are several reasons often cited by the LEAs for the choice to provide minimal cooperation, one very common reason is the fact that the LEA’s cooperation with ICE actually damages the ability of the LEA to properly investigate and prosecute crime. In areas with high populations of immigrants, trust between the immigrant community and the LEA is crucial to the ability of the LEA’s fundamental task of protecting and serving the community as a whole. If the immigrant community is aware that the LEA readily cooperates with ICE, or is legally required to assist ICE in its efforts to apprehend deportable persons (a la SB4), members of that community will be fearful of cooperating with the LEA. When members of the community fear having contact with the police, the policy impedes the LEA’s ability to solve local crimes because the effectiveness of that job relies on information from witnesses and statements from victims and other members of the community.
2. Resources and training of the law enforcement agencies – Local police agencies have an extremely difficult job as it is, and they are often underfunded. Many LEAs do not support cooperation with ICE because it adds another level of investigatory requirement to their already strained workloads and budgets. In order for local officers to properly and lawfully act in a role as an immigration enforcer, the officers would need extensive training in federal and immigration law and would have to increase work hours to comply with the new requirements.
3. Federal preemption – Under a constitutional principle called federal preemption, state and local authorities are generally not allowed to enforce federal law, particularly when an enforcement procedure is already in place. This is a long-standing principle that has been addressed by several federal courts, including the U.S. Supreme Court. The policy is also reasonable on a practical level because federal authorities are usually in the best position to enforce federal law. Specialization and extensive training is often required to carry out this enforcement due to the complicated nature of the laws being enforced. Also, federal preemption precludes states from enacting their own laws related to federal matters so that overlapping jurisdictions do not end up with conflicting laws on the same matter. Generally, if that happens, the federal law will supersede the state law and the state law will be invalid.⁴

A doctrine of federalism, “known as the “anti-commandeering principle,”⁵ says that the federal government can’t require state officials to enforce federal law. Its leading formulation was written by the late Justice Antonin Scalia in the 1997 case of Printz v. U.S.

The Printz decision struck down provisions of the Brady Act that required state and local law enforcement officials to do background checks of firearm purchasers. Scalia reasoned that the federal system separates state officials from the executive chain of command that covers federal employees. And he concluded that the constitutional system of federalism bars Congress from pressing state officials into service to execute federal laws.”⁶

1) http://www.latimes.com/nation/la-na-immigration-employers-20170320-story.html

2) Ibid.

3) Ibid. 

4) https://www.indivisibleaustin.com/2017/02/01/an-immigration-attorney-and-an-activist-scholar-explain-why-sb4-is-a-terrible-idea-and-what-you-can-do-to-stop-it/

5) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/26/federalism-the-constitution-and-sanctuary-cities/

6) Ibid.