7beachbum
On January 16, U.S. Homeland Security Secretary Kirstjen Nielsen confirmed that the Department of Justice intends to pursue criminal charges against local and state officials who defend “sanctuary” policies. “The Department of Justice is reviewing what avenues may be available,” Nielsen told the U.S. Senate Judiciary Committee.
Nielsen argues sanctuary policies put U.S. Immigration and Customs Enforcement agents “at risk” and therefore local officials should be held criminally accountable for not following orders. On March 6, 2018 the Department of Justice sued California, Governor Jerry Brown and Attorney General Xavier Becerra over the state’s newly-passed sanctuary laws. Among the Department of Justice claims: the reforms force ICE agents into “difficult and dangerous” situations, “endangering immigration officers.”
Similar intimidation tactics are already taking place on the state-to-local level. At issue are not just sanctuary city policies but the ability of local governments and officials to stand up to state governments’ “preemption” of their municipal powers.
For example, Texas last year passed a highly controversial “show me your papers” immigration bill (SB4) that prohibits any local law, order, rule, informal policy, unwritten rule, or action that impedes federal immigration agents. And if the law is broken, local officials can be held personally responsible.
Under SB4, local officials and employees can be fined $25,000 per day or even removed from office if they defy the law. Parts of this section of the law are still hung up the Fifth Circuit Court of Appeals. However, according to Celina Moreno of the Mexican American Legal Defense and Educational Fund, the court did rule that local officials can be sanctioned if they outright ban police from asking for people’s immigration papers, and other sections of the bill are in effect, including a section that threatens punishment for local jail officers.
At issue are not just sanctuary city policies but the ability of local governments and officials to stand up to state governments’ “preemption” of their municipal powers.
The first investigation brought under SB4 was launched in January, after Texas Attorney General Ken Paxton received complaints alleging San Antonio Police Chief William McManus had violated the law. The investigation surrounds McManus’s handling of a human smuggling case from early January. The chief arrested the semi truck driver for human trafficking but let the twelve victims go. Immigration hardliners claimed McManus should have detained the twelve individuals, who are assumed migrants.
In an email to San Antonio Current, McManus defended what he did, writing, “No background checks or fingerprints were taken of the twelve victims because it is against procedure do so of victims of crime or witnesses to a crime.” Indeed, the conservative Ken Paxton himself said on a radio show that under SB4, law enforcement are not required to check peoples’ papers, but only allowed to.
Nonetheless, in announcing the launch of the investigation, Texas Lieutenant Governor Dan Patrick warned that McManus’ “action could be in direct violation of the recently passed Senate Bill 4 and threatens the safety of citizens and law enforcement.”
Laws similar to SB4, which strip local officials of their legal immunity or economically sanction local governments or officials who defend municipal powers, have passed in at least ten states in recent years.
Florida, like many states, prohibits municipal governments from passing gun-safety laws. But like SB4, it’s law goes one step further by allowing any local Florida official who defies the state’s “preemption” of local gun laws to be personally sanctioned and even removed from office. In the wake of the tragic Parkland shooting, some local city officials are now “daring” the state to remove them from office for enforcing local assault rifle bans. Similar “super preemption” gun laws are also on the books in Alabama, Indiana, Kentucky, Mississippi, Nevada, and Tennessee.
Florida prohibits local governments from curbing fossil fuel extraction, passing certain worker-protection ordinances and more. In response, a broad coalition including labor, immigrant, racial justice, environmental, and gun safety groups, has sprung up to oppose Florida’s myriad forms of preemption.
“Super-preemption is a draconian practice where a state isn't satisfied with eroding democracy at the local level,” says Mike Alfano, campaign manager of the Campaign to Defend Local Solutions, a leading critic of “super preemption.” “So they take it one step further, allowing special interest groups like the National Rifle Association to threaten local officials with fines, removal from office, or even jail time if they try to pass any law that might be preempted.”
The effect is to “completely chill local governments from passing common-sense local solutions to protect the health, safety, and well-being of their communities.”
The effect, he says, is to “completely chill local governments from passing common-sense local solutions to protect the health, safety, and well-being of their communities. And that's exactly what these interest groups want: cities and counties that don't agree with them to be intimidated and bullied into inaction.”
Since the Campaign to Defend Local Solutions came out with a study on “super preemption” in spring 2017, Texas passed SB4, Tennessee passed its super preemption gun law, and Georgia passed a bill (HB37) that removes funding from any private college that “prohibits or restricts officials or employees . . . from communicating or cooperating with federal officials or law enforcement officers with regard to reporting [immigration] status information.” These join others, like an Arizona’s 2016 law, which withholds state funds from any locality that enacts a policy that challenges state law.
And, with most states now in the heat of the 2018 legislative session, issues of local democracy show no signs of subsiding. In January, the Florida House of Representatives passed a “super preemption” sanctuary city bill (HB9) that, if passed by the Senate and signed into law, would facilitate a full-scale immigration crackdown in the state. Its radical changes include provisions to allow people who are harmed by “aliens” to personally sue “sanctuary cities,” as well as the suspension or removal from office of public officials who “willfully and knowingly” fail to report unauthorized immigrants. “Officials who encourage persons unlawfully present in the United States to locate within this state . . . should be held accountable,” the bill reads. Agencies or local governments that violate the law are also subject to fines and could become ineligible to receive state grants.
In Texas, despite the threat of sanction, communities are resisting SB4 and continue to explore new ways cities and counties can help to protect immigrants and their families.
“Just because SB4 has been allowed to partially go into effect does not mean your constitutional rights can’t be violated under that SB4,” Moreno says. “We will continue the fight and remain vigilant against racial profiling and arrests made solely based on a person’s immigration status–both which remain unconstitutional in this country, with or without SB4.”
Simon Davis-Cohen is editor of the Ear to the Ground newsletter, an exclusive “civic intelligence” service that mines local newspapers and state legislatures from across the country.