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Federal judges consider constitutionality of 'sanctuary city' law

Last Monday, a federal judge in San Antonio held a hearing on the constitutionality of Texas's new "sanctuary city" prohibition. Meanwhile, several jurisdictions and nonprofits are actively planning either to flout the new law or to challenge it in court. On Thursday, the Texas Attorney General's Office asked another federal judge in Austin to consolidate the 

case in San Antonio with its own suit against jurisdictions that plan to violate that prohibition.

As we've discussed on this blog before, the "sanctuary city" ban purportedly makes it illegal for cities and localities to become "sanctuary areas" for immigrants. In such areas, local law enforcement personnel would not be allowed to work in conjunction with the U.S. Immigration and Customs Enforcement on federal immigration enforcement. Also typical in sanctuary areas, law enforcement would not be allowed to ask about someone's immigration status when investigating crimes.

The new law, which goes into effect Sept. 1, does more than just encourage law enforcement to cooperate with ICE or to ask about immigration status. It subjects local officials to fines and jail time if they refuse, or if they try to set up a "sanctuary area."

The new law is quite controversial. Opponents worry that law enforcement officers will be put in an alienating position among immigrant communities, which might keep immigrants from reporting crimes. Others point out that police would have unchecked discretion to use immigration problems as leverage in criminal cases -- or to send unruly immigrants into ICE custody.

Is it too soon for the Attorney General to sue pro-sanctuary cities?

The lawyer for the City of El Cenizo pointed out that the law hasn't yet gone into effect, meaning it is too early for the Attorney General's office to seek to enforce it.

A state attorney representing Texas argued it was "completely appropriate" to bring a so-called "pre-enforcement" action because the cities he is suing have openly said they will not comply with the prohibition.

"I don't have the authority to forecast the future," said the judge in Austin. "Aren't you looking at alleged conduct that's going to happen after Sept. 1?"

The judge ultimately told the State that it had no facts or evidence to support a "pre-enforcement" action. He told the defendant cities to present their evidence at a hearing in San Antonio that is scheduled for today. He also criticized both sides for bringing political motivations into the courtroom.

He strongly urged the defendants to continue their case in San Antonio, citing his busy docket. He also said he did not believe requiring cities to comply with ICE immigration holds is likely to be unconstitutional, so the defendant cities may wish to take his request seriously.

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