A federal appeals court on Tuesday formally overturned nearly all of an injunction that a U.S. District Court judge issued last year against a Texas immigration law aimed at blocking local governments in the state from adopting so-called sanctuary policies.
The ruling from the 5th U.S. Circuit Court of Appeals was not a surprise, because that court issued a stay last September allowing the bulk of the Texas law, known as Senate Bill 4, to take effect. However, the decisions came from two separate three-judge panels of the appeals court.
The new decision largely tracked with the earlier stay, finding legally problematic only one part of the Texas law that prohibited local officials from taking any steps to “endorse” a sanctuary policy.
Lawyers for the state proposed a narrow reading of that provision, but the appeals court rejected that reading and held that portion of the law likely .
“As written, SB4 proscribes core political speech when such ‘endorsement’ is uttered by elected officials,” Judge Edith Jones wrote. “The state cannot regulate the substance of elected officials’ speech under the First Amendment without passing the strict scrutiny test.”
Even in that regard, however, the 5th Circuit narrowed the impact of the injunction, barring the state only from enforcing the law against elected officials. The appeals judges suggested the provision might be constitutional as applied to subordinate employees.
Some language in the 5th Circuit opinion could also influence an ongoing debate about immigration detainers and local officials’ authority to comply with such requests to hold foreigners so they can be turned over to immigration officers.
Some courts have suggested that local police officers or sheriffs who hold on to individuals in order to comply with detainers may be violating the Constitution because those detainers are not based on a probable-cause determination by a judge.
But the conservative 5th Circuit panel said the District Court judge handling the case “erred” when he said local officers needed to have probable cause to believe a person subject to a detainer had committed a criminal offense.
“Courts have upheld many statutes that allow seizures absent probable cause that a crime has been committed,” wrote Jones, an appointee of President Ronald Reagan. “The District Court’s contention is also patently at odds with immigration law and procedure; civil removal proceedings necessarily contemplate detention absent proof of criminality.”
The appeals court’s language could help the Trump administration undercut sanctuary laws and ordinances by bolstering legal arguments that immigration detainers are a valid basis for local officials to detain foreigners at federal request.
The Trump administration backed the validity of the Texas law in the lawsuits, which were brought by local officials and governments.
Jones’ opinion was joined by Judges Jerry Smith and Edward Prado. Smith is a Reagan appointee. Prado was appointed by President George W. Bush.