City of El Cenizo v. Texas (5th Cir., 2018)City of El Cezino, et al. v. Texas, et al., No. 17-50762 (5th Cir.) May 8, 2018.

---

The Texas legislature sought to nip in the bud local “sanctuary city” self-selection measures through which Texas localities promised not to cooperate with federal officials in enforcing immigration detention and cooperation policies.  Texas passed legislation which now forbids such avoidance of federal law.  Localities rebelled, asserting violations of the U.S. Constitution: all but one of the harms alleged was found to lack merit.

Texas Government Code 756.053(a-b) forbids local governments from adapting policies or practices inhibiting immigration enforcement.  The Texas Code of Criminal Procedure requires local compliance with federal Department of Homeland Security requests requiring notification of federal authorities before detainees who may be in violation of immigration laws are released.  Civil and criminal penalties attach to failures to conform to these measures.

A federal district court rejected general claims that federal law preempts Texas anti-sanctuary cities measures but granted injunctive relief concerning cooperation measures.  The trial court found requirements forbidding ‘endorsement’ of anti-federal immigration measures fatally overbroad, vague, and viewpoint discriminatory. The trial court found the statutory proscription of “materially” limiting federal immigration provisions defective as vague. Finally, the district court found the detainee mandates violate the Fourth Amendment.

Texas sought stays of the injunctions pending appeal, succeeding in part on the Fourth Amendment and preemption claims.  The “material” limitation survived review, but the “endorsement” provisions did not.

The Fifth Circuit observed that there is no express preemption in federal immigration law.  Here, field and conflict preemption are in issue.

Although field preemption prohibits state or local measures where Congress has manifested an intent to occupy the regulatory landscape, and although an intricate web of federal and state cooperation and compliance measures are already in place, the Fifth Circuit failed to perceive field preemption, emphasizing that federal law controls how local authorities will cooperate but local law controls whether they may do so. Not only would the Tenth Amendment prohibit the sort of compelled action imagined if a federal ‘sanctuary’ measure were enacted, but if preemption were found, much of the extant local cooperation measures would fall away.

Conflict preemption considers whether state or local law thwarts Congressional objectives:  none were found here, the Fifth Circuit held, because the state prohibitions on material limitations of cooperation with federal immigration officials envision cooperation, not conflict. Neither can conflict preemption be found where federal assistance and cooperation agreements are permitted but not required, and where the Tenth Amendment would again prohibit federal compulsion of local enforcement of federal law.  

The state statute’s prohibition on preventing inquiry into immigration status is not infirm where the Supreme Court has held that local officers may inquire about the immigration status of persons  lawfully detained if reasonable grounds exist to believe a detainee is improperly present.

The state prohibition of “endorsement” of prohibiting or materially limiting immigration enforcement may be enjoined, as it impedes core political speech by elected public officials. As non-elected employees were not before the court, the court declined review of their First Amendment interests.

Local officials have standing to challenge the detainee mandates in that their refusal to do what is required would jeopardize their positions. Notwithstanding the real potential for injury, a facial Fourth Amendment challenge must fail, as it is not possible to establish that each and every immigration and customs enforcement request violates the Fourth amendment. Moreover, current administrative warrant practices require attestation to probable cause for removability and the collective knowledge doctrine permits imputing probable cause to local officials.

Finally, probable cause of criminality is not required to support detention. Persons lacking capacity through illness or legal infirmity may be seized without probable cause of criminality.  Where the federal Immigration and Customs Enforcement detainee laws require state officials to carry out federal detention requests, a Massachusetts determination that state officials had no independent immigration enforcement powers is not on point. Significantly, local officials are not bound to overlook an absence of probable cause, particularly where valid identification would excuse continued detention. Imagined subsequent changes in federal law abandoning probable cause requirements cannot control current practice.

The Fifth Circuit rejected a vagueness challenge to the ‘materiality’ qualification for interference with federal law enforcement. Specific examples of ‘material’ interference have been presented and the notion of ‘materiality’ has been well replicated in securities and professional responsibility laws. Any as-applied analysis must await cases with greater concreteness.

The Fifth Circuit concluded that injunctive relief in all but the endorsement claims must be vacated.  

City of El Cenizo v. Texas (5th Cir., 2018)