- The Washington Times - Tuesday, February 7, 2017

A proposal by Texas lawmakers to withhold grant money from jurisdictions that hamper enforcement of immigration laws through so-called “sanctuary city” policies is constitutional, according to a review by the state’s Republican attorney general.

The analysis was issued by Attorney General Ken Paxton this week, as the full Texas Senate gave preliminary approval to the hotly contested bill Tuesday.

Republicans supported the bill, saying it ensures uniformity in the application of federal immigration laws and helps remove illegal immigrant criminals from the streets. Democrats opposed it, expressing concern about the potential for racial profiling under the law.

State lawmakers debated the legislation for hours Tuesday and considered upwards of 30 amendments before giving it first approval on a 20-11 party-line vote.

The bill still needs to pass a final vote in the upper chamber, possibly Wednesday, and also win the approval of the state House. But the bill was granted “emergency status” by Gov. Greg Abbott and is expected to sail through the legislature.

The bill “ensures there is predictability, that our laws are applied without prejudice,” said bill author Sen. Charles Perry, Lubbock Republican. “It is not to deport college students, people working, people following the law, people trying to better their lives.”

The legislation would allow local police to enforce federal immigration laws if officers are working with federal immigration officers or under an agreement between the local and federal agencies.

It also would punish local police departments and law enforcement at college campuses that decline to cooperate with immigration authorities — such as by discouraging employees from inquiring about the immigration status of arrested individuals or refusing to honor immigration detainers and releasing inmates from custody before federal authorities can take them into custody.

Forward momentum on the Texas bill comes as the Trump administration is working to define the details of an executive order that similarly targets sanctuary cities. The exact type of grants the federal government could keep from cities that decline to cooperate in immigration enforcement remains under consideration, though President Trump’s order carves out an exception for grants deemed necessary for law enforcement.

But as Texas lawmakers move forward with the anti-sanctuary law, their proposal could provide clues as to how Mr. Trump’s version could succeed.

“The Texas Legislature’s bill is much more developed. It actually has some pretty clear requirements and measures that can be taken if local jurisdictions don’t abide by immigration detainers or comply with the provisions of the law,” said Denise Gilman, director of the Immigration Clinic at the University of Texas, Austin.

The Trump policy, she said, is potentially “more disruptive of the traditional roles” of local and federal law enforcement.

In a letter to Sen. Joan Huffman, Houston Republican, Mr. Paxton sought to address several legal questions raised last week about the bill before the Senate committee she chairs voted favorably for it.

One concern raised about the bill is whether it would justify a jurisdiction in citing an immigration detention request as probable cause to keep someone in custody for a longer period than that person ordinarily would be held by law enforcement.

Mr. Paxton wrote that a prior Supreme Court case held that “civil detentions are constitutionally permissible under the [Immigration and Nationality Act] so long as there is sufficient justification.”

“In short, the justification of probable cause is required of (and not anathema to) detainers. As such, the individualized probable cause ICE [Immigration and Customs Enforcement] has required of detainers since 1985 is sufficient to avoid constitutional problems with justification,” Mr. Paxton wrote.

Ms. Gilman said the detainers are a statement of interest by ICE, not based on probable cause, and have led to violations of U.S. citizens’ rights.

“There is a real question of authority,” she said. “U.S. citizens have been held beyond the time that they would have been released from jurisdictions just based on that ICE statement of interest.”

Some sheriffs and police chiefs from heavily Democratic areas have voiced opposition to enforcing federal immigration law, raising concern about a loss of community trust and cooperation in crime-fighting among immigrant communities.

Newly elected Travis County Sheriff Sally Hernandez came under fire last week for her pledge not to honor most warrantless requests from ICE to extend the detention of individuals booked in jails in the state capital of Austin. Republican Gov. Greg Abbott last week cut $1.5 million in criminal justice grants that his office appropriated to Travis County over the policy.

Local authorities have said that cut is not affecting the sheriff’s agency, rather the reductions come from programs that provide outreach to victims of family violence, rehabilitation services for prostitutes, and drug diversion and veterans’ courts, the Dallas Morning News reported.

The bill includes a provision that opens law enforcement agencies to legal liability if they release an inmate for whom ICE issued a detainer request and that person goes on to commit a felony within 10 years of being released.

That provision puts law enforcement agencies between a rock and a hard place, Ms. Gilman said.

Mr. Paxton states in his analysis that counties could avoid liability so long as they act in good faith to work with an inmate to verify any claims the person makes about immigration status.

The bill would “make great strides to keep communities secure by requiring state and local law enforcement to cooperate with federal agencies as they take cure to faithfully execute the immigration laws of the United States,” Mr. Paxton wrote.

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