Last week, the 7th U.S. Circuit Court of Appeals issued a nationwide injunction, ruling it was unconstitutional for the federal government to withhold funds from local jurisdictions that do not comply with federal immigration enforcement. However, this decision could mean little for the state of Texas, said Denise Gilman, UT law clinical professor.
“The federal government, under this ruling, still cannot withhold money in reprisal for local jurisdictions taking decisions not to collaborate with federal immigration authorities, but it doesn’t really matter because there’s a much bigger hammer available in Texas, which is state law,” said Gilman, director of the Texas Law Immigration Clinic.
In an effort to target sanctuary cities, the Department of Justice, under Attorney General Jeff Sessions, issued three requirements law enforcement must comply with to receive federal funding: Notify the Department of Homeland Security when they have an undocumented immigrant in their custody, hold suspects for 48 hours until federal authorities arrive, and share information with federal immigration authorities as stipulated under federal law.
The appellate court ruled that local jurisdictions, for the time being, are not obligated to cooperate under the first two rules in order to receive federal funding.
Anna Sabana, Austin Police Department spokesperson, said some of the DOJ’s conditions would not be applicable to APD.
“APD does not maintain custody of its arrestees following arrest — officers take them to a booking facility operated by Travis County or another entity — and does not have its own jail or correctional facility,” Sabana said in an email. “Therefore, APD does not notify (Department of Homeland Security) or (U.S. Immigration and Customs Enforcement) before a person who may not have lawful status is released from custody after being booked into jail.”
Gilman said SB4, known as the sanctuary cities ban, is a bigger deal than federal funding being withheld. SB4 requires Texas law enforcement to cooperate with federal immigration agencies, and makes it permissible for law enforcement to question the immigration status of people arrested or detained.
“It’s not really that state law trumps federal law,” Gilman said. “But we’re basically put back into the same place under SB4 which forces local jurisdictions to comply with federal immigration request aside from any funding issue.”
Travis County Sheriff’s Office enacted a policy last year not to hold inmates for Immigration and Customs Enforcement to detain suspected undocumented individuals. Texas Gov. Greg Abbott threatened to withhold $1.5 million in criminal justice grants, provided by his office, for the county, if they did not comply with federal immigration authorities, according to the Texas Tribune.
The DOJ has not yet released Byrne Justice Assistance Grants, which provide critical funding to local law enforcement, for the 2017 fiscal year.
Ruth Wasem, clinical professor in the LBJ School of Public Affairs and former domestic policy specialist for the U.S. Library of Congress, said despite the recent appellate ruling, the DOJ is not out of legal options to target sanctuary cities.
“What will happen is the DOJ will have to decide whether they’re going to challenge the ruling or whether they’re going to just back off and change their policy,” Wasem said. “My sense is that the Trump administration will push this further through the courts because it’s something the president seems to feel very strongly about.”