SB 4’s unconstitutionality undermines its utility

Liam Verses

No words can quite encapsulate the trenchant political scene in the Lone Star State. Senate Bill 4, the newest hot button issue to be litigated and halted, cracks down on sanctuary cities. SB 4 is in some respects lawful and reasonable, but in others it pushes and crosses constitutional limits. A version of SB 4 that uncrosses constitutional boundaries would ensure cooperation between federal and local officials, sanctioning for noncompliance and simultaneously secure a peace of mind for the Latino community.

SB 4’s preeminent purpose is to punish local law enforcement officers and officeholders who refuse to honor Immigration and Customs Enforcement detainers. It enables civil and criminal penalties and possible removal of officials for failure to adhere to SB 4. It also allows for local law enforcement to question the immigration status of people during detention or arrest, which opposers argue will encourage racial profiling during things as routine as traffic stops.

SB 4 should be changed to reflect a more appropriate constitutional policy whereby a law enforcement official could only inquire about the person’s status if that official had reasonable suspicion to believe the person was in the country illegally. (Reasonable suspicion was the criterion for Arizona’s similar immigration law and is more likely to withstand Fourth Amendment challenges.)

Federal Chief Judge Orlando Garcia raised First Amendment concerns about the prohibiting of local officials from endorsing policies that materially limit federal immigration law. Local officials are expected to unequivocally uphold local, state and federal laws. Though officials may have discretion to voice their perspectives on matters of public policy, those subjective ideas shouldn’t filter into their elected and appointed positions as employees of the state.

Nevertheless, Judge Garcia’s concerns contain merit, as “endorse” isn’t clearly defined in the bill and could be interpreted to include actions that fall under free speech. Lawmakers must amend SB 4 with clearer criteria for “endorse” or else the law is broad enough to infringe upon the First Amendment.

Once amended, SB 4 could provide apt disincentives considering elected officials and law enforcement take an oath that states that they “will to the best of (their) ability preserve, protect and defend the Constitution and laws of the United States.” However, due process requires that these officials know beforehand what policies may violate the law, and SB 4 doesn’t adequately detail policies that would subject officials to criminal and civil penalties.

In light of SB 4, it’s important to recall that one of the chief concerns motivating the Republican-backed sanctuary cities law is safety for all Texans. Non-citizens’ rate of crime is likely disproportionate to their percentage of the U.S. population, at least at the federal level: 55,322  undocumented immigrants who had entered the country illegally were featured in a Government Accountability Office report that determined an average of eight arrests and 13 offenses per each criminal. A second also found non-citizens comprised 27 percent of the federal prison population despite making up only nine percent of the U.S. population. Furthermore, Travis County released 142 criminals that had ICE-issued detainers in a one week period earlier this year, many of whom were charged with violent crimes.

While a vast majority of undocumented immigrants are fundamentally decent people, we cannot ignore those who commit crimes against our country and allow them to go free at the discretion of local authorities who place agenda ahead of others’ welfare. SB 4 is targeting those who have been complicit in the crimes of undocumented immigrants residing in the country illegally, not people living here — even illegally — under normal circumstances, nor officials fulfilling their roles sufficiently. In essence, if you’re playing by the rules, you’re not going to be targeted.

At the end of the day, Texans want both safety and constitutionality. In its current state, SB 4 does an inadequate job of protecting the latter. With appropriate changes, it would assure equal protection for the Latino community and local officials while allowing federal officials to remove harmful predators from our society in an unobstructed fashion.

Liam Verses is a Plan II and environmental engineering freshman from San Antonio. Follow him on Twitter @liamverses