This week we’re taking a break from our regular programming around red state litigation challenging federal immigrant-inclusive policies (as posted on our microsite) to examine a related topic: recent political ploys by extremist state politicians attempting to take immigration policy into their own hands—even when doing so is unlawful under controlling precedent.
Let’s start in (where else, my home state) Texas. Last year Texas enacted Senate Bill (“SB”) 4, which purports to authorize state and local law enforcement to arrest and prosecute migrants they suspect entered Texas illegally, and to empower state court judges to order those migrants to leave the United States. Even while enacting the law, some Texas Republicans acknowledged the likelihood that SB4 would be held unlawful by lower courts, particularly given the Supreme Court’s 2012 Arizona v. United States decision (about Arizona’s notorious SB1070), but they expressed hope that the law could present SCOTUS (which has since had three Justices replaced by Trump appointees and one by Biden) with the opportunity to revisit that decision. SB4 is scheduled to go into effect March 5, but both the United States and a group of private plaintiffs (represented by the Texas Civil Rights Project and ACLU) have sued Texas over SB4 and have asked a judge to enjoin (block) the law before its effective date. A judge heard oral arguments on those requests yesterday and reportedly said he would issue a decision before March 5.
Meanwhile in Florida, a request for a preliminary injunction of parts of a state law (SB1718) is also pending. Among other things, SB1718 makes it a felony (of “human smuggling”) to knowingly transport an undocumented immigrant across Florida state lines—even a parent, child, or spouse. This provision parallels laws that Georgia and Alabama passed in 2011 that tried to criminalize the “transporting” of certain immigrants. Like the GA and AL laws, Florida’s has led to an exodus of migrant workers from the state. Both the GA and AL laws were blocked by the Eleventh Circuit Court of Appeals (which also covers Florida), meaning SB1718 (like SB4) was enacted despite full knowledge of its illegality and therefore should be quickly blocked.
There are yet more examples of extremist politicians recycling anti-immigrant ideas already rejected by courts. Just after taking office in January, for example, Louisiana Governor Jeff Landry issued an executive order ordering law enforcement to maintain and publicly publish a list of immigrants they arrest—much like a 2012 Alabama (“Scarlet Letter”) law that the State agreed not to enforce after getting sued. Republicans in Arizona, meanwhile, have introduced what some are calling “SB1070 2.0” (and others are calling “veto-bait” given what the Governor is likely to do).
In other words: there is little new in the extremist fight against the fair treatment of immigrants (and we haven’t even touched on California’s Prop. 187 or WWII-era measures). Here’s hoping that this generation of judges and justices uphold our constitutional values at least as well as their predecessors.
Thanks for reading,
Karen Tumlin
Founder and Director
