Local officials across Texas are anxiously waiting to see whether the state’s harsh new immigration law will take effect — and how it will impact their communities.
The law makes entering Texas outside a port of entry a state crime, punishable in the first instance by up to six months in jail and in subsequent crossings by up to 20 years.
In a dramatic series of rulings on Tuesday, Texas Senate Bill 4, or SB4, briefly went into effect following a Supreme Court decision — only to be stayed again by an eleventh-hour decision Tuesday night.
Now, with the law once again before the highly conservative 5th Circuit Court of Appeals, local officials say they have no idea what will happen next.
“It’s been a complete whiplash for pretty much all local government,” said El Paso County Attorney Bernardo Cruz, one of the plaintiffs in the suit against the state.
Every time the law goes back into effect, Cruz said, it raises the possibility that someone might show up in their county jail under a possibly unconstitutional law that may be tossed out again.
“There’s the local sheriff, there’s local district attorney, there’s the local judges — who are the ones who are going to potentially be receiving that detainee at 3 a.m., and who have to figure out, one, what the law requires them to do.”
Not only do those officials have to “prepare for something that may or may not happen,” Cruz said, “they actually have to do that in real-time, right? So it’s really hard to plan ahead because of how broad the law is.”
Many of the wrinkles in the law have yet to be ironed out, Cruz said. For example, if a state judge directs a person to go to Mexico, whose job is it to bring them there?
Or, he asked, what if they’re sent from an interior city like Amarillo to be deported from a border community like El Paso — and then refuse to cross back to Mexico, triggering their arrest and detention? Which county is responsible for locking them up — and paying to house and try them?
“You know, these are all questions that are not very exciting, legally speaking, or maybe even to the wider public. But I think those are questions that local governments have to grapple with.”
Much of the confusion comes from the sheer novelty of SB4. The bill brings about a far-reaching expansion of Texas state authority into territory traditionally occupied by the federal government, which has historically preempted any move by the states into immigration enforcement.
Texas has based that expansion on the idea that it faces an “invasion” from Mexico, one that federal Judge David Ezra dismissed — leading him in February to put enforcement of the law on hold while the legal fight between the Biden administration and the state of Texas played out in court.
That ruling marked the beginning of a dizzying series of reversals.
The day after Ezra’s decision, the 5th Circuit overruled his stay, which the Biden administration appealed to the Supreme Court — with ambiguous and confusing results.
On Tuesday, the high court allowed the law to go into effect temporarily, but issued no ruling as to whether it was constitutional — instead directing the 5th Circuit to rule promptly on whether it was legal.
Late Tuesday night, the court of appeals scheduled an emergency hearing for Wednesday — and paused enforcement of the law while it did so.
This repeated series of contradictory rulings in advance of any actual decision on the legality of the measure was “indefensibly chaotic,” University of Texas at Austin law professor Steve Vladeck told The Texas Tribune.
“Even if that means SB4 remains paused indefinitely, hopefully everyone can agree that this kind of judicial whiplash is bad for everyone,” he said.
In oral arguments on Wednesday morning, 5th Circuit justices appeared divided on the merits of the state case, according to The Texas Tribune.
One major added element of uncertainty comes from the question of whether the law will affect life beyond the immediate Texas-Mexico border — for the approximately 1.6 million undocumented immigrants living and working in Texas, for their families or for the municipalities and police departments that could potentially be responsible for arresting them.
That possibility remains theoretical, as 5th Circuit Judge Andrew Oldham, a Trump appointee, noted Wednesday.
“We have no clue how any of this would actually be enforced, because there’s not been a single person who has been arrested,” Oldham said.
“So we’re predicting all of this.”
In arguments in February before Judge Ezra, state attorneys took pains to argue that SB4 would apply only when migrants were seen crossing the border, not to those living in, say, Houston.
During the approximately 8 hours on Tuesday that the law was in effect, local law enforcement officials across Texas issued statements essentially arguing immigration enforcement was not their job.
The El Paso County sheriff’s office, for example, said it wouldn’t prioritize enforcing the law and that immigration enforcement was the job of the federal government. “Throwing local law enforcement into this is problematic,” a departmental spokesperson said.
Dallas Police Chief Eddie Garcia, for his part, noted the law was “a cause for concern for some in our community” and said his department “understands these concerns and will continue to enforce the existing state law that prohibits racial profiling.”
Similar statements came out of cities including San Antonio, Austin, and Houston — and in smaller cities such as Lubbock, where Maverick County Sheriff Tom Schmerber told a local newspaper that enforcing the law was “impossible.”
“What if we deport a U.S. citizen?” Schmerber said. “My deputies are not trained for immigration work.”
Other very conservative sheriffs echoed this same fundamental theme — including Tarrant County Sheriff Bill Waybourn, who wrote in a post on social media that Texans were “frustrated with the continued onslaught of illegal entry into this country and the federal government’s unwillingness to act.”
But after this preamble, Waybourn also said SB4 would likely fall outside his remit because it was “unlikely that law enforcement in North Texas will have knowledge of an individual’s illegal entry status to enforce” the law since they would not have been able to observe the crossing themselves.
That idea was echoed by bill sponsor and state Rep. Matt Schaefer (R-Tyler), who wrote on social media that “SB4 was NOT designed for interior enforcement” and that expecting “local police in the interior (e.g., Ft. Worth) to engage in SB 4 enforcement misses the mark.”
But sheriffs — and the prosecutors who try their cases — may not have much choice, Harris County Attorney Christian Menefee, whose jurisdiction encompasses the bulk of Houston, told The Hill.
Even if police and sheriff’s commands try to stay out of direct enforcement, he said, “Hispanic and Latino communities will run the risk of being profiled. In large law enforcement agencies, even if there’s an edict from the top, they can’t guarantee that will make its way to every single officer.”
But there’s a bigger risk, he said. If SB4 is ultimately upheld, “there’s going to be pressure from the state and elected officials trying to coerce and pressure law enforcement agencies to enforce the law in a broad and discriminatory way.”
The legal infrastructure for this to happen already exists. Last year, the state Legislature passed a bill to remove “rogue” district attorneys who don’t prosecute state crimes.
That bill was targeted at district attorneys who don’t prosecute those who aid women in getting an abortion, but it can apply more broadly. In January, Attorney General Ken Paxton (R) sued five Texas municipalities for halting their prosecution of marijuana laws.
That law — in conjunction with broader moves by the state Legislature and executives to curtail cities’ power — puts local officials in a tough situation, Menefee said.
“Given that many of the heads of law enforcement agencies in the state of Texas or the head of those officers are elected, I think you very well can see state officials looking for ways to take punitive action against them if they have a policy — written or unwritten not to enforce the law.”
“So that’s why it’s a big deal. It won’t just be the bully pulpit. It could be threats of funding, and it can also be threats of going after elected officials.”
That’s a possibility some officials are delicately trying to get in front of.
In his guidance to deputies, Sheriff Julio Salazar of Bexar County, home to San Antonio — and nearly two-thirds Hispanic — sought to walk a narrow line between prospective state immigration laws and active federal racial-profiling laws.
“We need our deputies to understand that … we may not be allowed to tell you ‘you can’t enforce a law,’ right? That’s not what we’re saying,” Salazar said.
“What we are saying, though, is, ‘If you choose to do it, you’re assuming some liability for yourself. You’re putting this agency in a whole lot of liability.'”