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5th Circuit rules most of SB4 constitutional. What happens next?

In August, the chief U.S. District Court judge for the Western District of Texas found there was overwhelming evidence that Texas's sanctuary city ban, SB4, would "erode public trust and make many communities and neighborhoods less safe" along with causing localities to "suffer adverse economic consequences." He issued an order prohibiting its enforcement.

Broadly, the sanctuary city ban orders all Texas law enforcement agencies to comply with certain federal immigration priorities, including holding immigrant criminal suspects for possible deportation proceedings at the request of immigration authorities. Officers who refuse to comply could be removed from office or even jailed.

Opponents of the ban argued that it would also lead to "rampant discrimination" as Texas law enforcement would also be authorized to question the immigration status of those they stop or arrest.

Last week, the 5th Circuit Court of Appeals, which covers Texas, overruled the lower court, holding that most of SB4 does not, on its face, violate the constitution. With that interpretation in mind, the 5th Circuit sent the case back to the lower court for dismissal.

"The decision is a blow to the civil rights of every Texan," said a lawyer for the Texas Civil Rights Project. "Millions of immigrants and people of color face the prospect of unlawful racial profiling and discrimination."

The lawyer added that his group will monitor how the law is enforced to see whether people's constitutional rights are actually violated. The group may also file an appeal with the entire 5th Circuit. Ordinary appeals are heard by a three-judge panel. A so called en banc hearing would be heard by all 17 active appellate judges in the circuit.

The original federal lawsuit was filed by the City of El Cenizo and later joined by San Antonio, Houston, Dallas and Austin. The cities argued that being required to cooperate with federal immigration holds and asking about people's immigration statuses undermine trust between local law enforcement and immigrant communities. They argued that law enforcement, not the state, is in the best position to determine whether safeguarding immigrant communities' trust should be the priority.

That is a policy decision, however, not a constitutional one. Courts are not meant, however, to determine whether specific laws are a good idea. Instead, the role of the court is to determine whether those laws pass constitutional muster.

The 5th Circuit did agree that part of SB4 is unconstitutional. Part of the measure prohibits local law enforcement from "endorsing" any policy opposing federal immigration law. That violates the First Amendment, the appellate court ruled.

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