*This piece originally appeared on the Law Professor Blogs Network
by Geoffrey A. Hoffman, director of the Immigration Clinic at the University of Houston Law Center
The anti-sanctuary cities and campuses bill, SB-4, was signed into law on May 7, 2017. Most importantly, state laws are subject to federal preemption especially where there is a pre-existing structure in place for providing enforcement of federal laws by state officials. In fact, such a statutory federal structure already exists. It is Section 287(g) of the Immigration and Nationality Act (INA), which provides the mechanism whereby state law enforcement can be deputized to act as federal law enforcement officials. In addition, there are other federal laws which may “occupy the field” which already govern information-sharing between state and federal officials. See 8 USC § 1373. The new law also makes it mandatory to comply with ICE “detainers” signed by ICE officials and not a judge or magistrate. The new litigation brought by the governor seeking a declaratory judgment will have to grapple with the many federal district court cases that already have made pronouncements about the unconstitutionality of such ICE detainers. Under certain cases state officials have been sued and plaintiffs have received monetary damages due to detainers’ improper use.
First, consider INA 287(g). The section provides that localities may “voluntarily” enter into a memorandum of agreement (MOA) with the federal government. Then, the state or local entity receives delegated authority by the federal government to enforce the immigration laws within their jurisdictions. Part of 287(g) provides for training and oversight of the state officers so they can properly execute the federal immigration laws. Where is the oversight and training in SB-4? The SB-4 framework does not have any safeguards, such as any training by federal officials, among the other aspects of the federal-state partnership set out in the 287(g) framework. The SB-4 statute says state officers cannot be prohibited from asking about someone’s immigration status for one who is lawfully detained or arrested. It also specifically provides that state entities cannot have a policy which “prohibits or materially limits” the enforcement of immigration laws (by their own state officers).