The Texas Legislature meets once every two years. It’s an honest schedule, conservatives say, and one that reflects their commitment to small government.
No surprise, then, that this tradition has slowed the legislature’s ability to restrain the rogue city of Austin, which has flouted state GOP lawmakers by regulating Uber and Lyft, for example. On Wednesday, Austin began resisting federal immigration officials seeking to deputize local police departments in their rejuvenated efforts to deport undocumented immigrants.
Travis County Sheriff Sally Hernandez has planned to make Austin a “sanctuary city” since her election in November, after promising to do so on the campaign trail. This week, Travis County stopped honoring Immigration and Customs Enforcement detainer requests—which ask local police to hold individuals suspected of violating immigration law until they can be picked up by federal agents—unless those people had been charged with murder, aggravated sexual assault, or human smuggling. Under Hernandez’s predecessor, Greg Hamilton, the city had the nation’s third-highest rate for deportations initiated under Secure Communities, a defunct federal program that President Donald Trump reinstated last week.
The Texas GOP couldn’t cut Hernandez off at the pass, but it’s bearing down on her now. On Tuesday, Texas Gov. Greg Abbott declared sanctuary cities an “emergency item,” which allows lawmakers to vote on the issue during the first 60 days of the 140-day session. On Wednesday, Abbott responded to Hernandez’s move by cutting about $1.5 million in criminal justice grants to the county, which fund drug-diversion programs, family-violence therapy, and juvenile justice programs. On Thursday, in front of a raucous crowd at the state capitol, lawmakers began debate on a bill to force Austin to cooperate with federal immigration authorities.
Call it Austin vs. Austin as the deep-blue Texas capital faces off against the right-wing government that meets in its center. It’s a preview of the national battle over sanctuary cities to come.
For example: What are the political stakes for an elected leader upholding a sanctuary policy at the expense of $1.5 million in grants? Elected officials in Chicago, New York, and Philadelphia have made similar assurances to defy orders on immigration but no sanctuary jurisdictions have lost federal funding so far. Most experts believe that Trump’s executive order, which accuses sanctuary cities of breaking federal law and withdraws funding on that basis, has little legal standing. Nevertheless, the threat has worked on Florida’s Miami-Dade County, which agreed last week to comply with all Department of Homeland Security detainer requests.
For Hernandez—who won more than 60 percent of the vote in November—the initial response has been positive. Rep. Lloyd Doggett, who represents Austin in Congress, said the governor’s “vindictiveness is more like Russian President Putin’s authoritarian regime than our democracy.” State representatives also came to her defense. At the committee hearing on Senate Bill 4, which would push Travis County to comply with detainer requests (or face the loss of state grants and the possibility of lawsuits) more than 450 people arrived to testify in the state legislature, mostly against the bill.
This back-and-forth followed a moving display of solidarity from more than 1,000 Texans on Tuesday’s Texas Muslim Capitol Day, who formed a ring to protect Muslim demonstrators from anti-Muslim protestors—days after widespread protests against Donald Trump’s Muslim ban. The U.S. university with the most students from the banned countries is Texas A&M, with 271 students with visas from the seven countries. The University of Houston and UT–Arlington also count among the top 10 U.S. universities with students affected by the Muslim ban, according to Business Insider.
Thursday’s committee debate over SB 4 offered the latest preview of the arguments that advocates and opponents will use if an anti-sanctuary bill appears in the U.S. Congress. It’s not the first time these issues have been hashed out, of course, even within the Texas State Capitol, where similar bills failed in 2011 and 2015. But this the first time the issue has been discussed in the Trump administration, whose first two weeks have emboldened both rural, law-and-order Republicans and advocates for immigrants and cities. This time, now that Texas actually has a city declining detainer requests, the measure appears certain to pass.
Texas state Sen. Sylvia Garcia, who represents Houston, began her questioning of Sen. Charles Perry, who sponsored the bill, with a moral invocation. “I have a strong belief that we should welcome strangers, that we are all God’s children, and as a personal matter, I don’t like that bill,” she said. She argued, as many mayors and immigrant attorneys have, that complying with ICE’s warrantless detainers may be unconstitutional. “The police can knock on your door, but you don’t have to let them in until they have a court order,” she said to applause. “Has it ever occurred to you,” she asked Perry, “that these law enforcement officials are upholding the rule of law according to the Constitution, which trumps all other laws?”
Perry, who was joined by Texas Department of Public Safety Director Steve McCraw, asserted that Austin—in addition to posing a public safety risk that goes beyond city limits—is disobeying federal law. Though detainer requests have never been mandatory, conservatives—including Trump’s pick for attorney general, Sen. Jeff Sessions—believe that not complying with these requests can be broadly interpreted as a violation of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. That seems to be the position of the Trump administration as well. “There’s almost a culture of contempt for federal law in this area,” said Perry. “It’s not optional to ignore ICE detainers,” said Andy Louderback, the rural sheriff who heads the Sheriff’s Association of Texas.
Travis County Judge Sarah Eckhardt, writing to Gov. Abbott, suggested sanctuary opponents make that argument in bad faith. “I am confident Sheriff Hernandez’s policy is well within the current law,” she wrote. “I am certain you have come to the same conclusion; else you would not be seeking to change the current state law to put all Texas sheriffs in the service (of) the United States Department of Homeland Security.” Sheriffs in Dallas, El Paso, Houston, and San Antonio have all opposed iterations of this bill. Sheriffs and police chiefs who testified on Thursday emphasized the bill would hamper policing efforts in immigrant communities.
SB 4 is broad. It prohibits cities, counties, and campus police departments from endorsing any policy that might “discourage” the enforcement of federal immigration laws, an expansive prohibition that specifically outlaws “don’t ask” laws, which prevent police officers from inquiring about immigration status of a person under arrest. (Hernandez adopted such a policy in Travis County.) It makes cities liable for damages resulting from any felonies committed in the subsequent decade by persons they decline to detain.
The legislation also explicitly opens a window for police statewide to make traffic stops and conduct searches in order to enforce immigration law. That kind of action is prohibited in the bill except in the case of a federal 287 (g) agreement, a policy that allows local police to do DHS immigration work. Those agreements were allowed to wane under the Obama administration, but Trump’s executive order on sanctuary cities directed John Kelly, his director of homeland security, to resume the practice—meaning that what appears now as a prohibition could soon evolve into a license.
Harris County, the only one in Texas that maintains a 287 (g) agreement with the Department of Homeland Security, has maintained that there is “no street-level component” of the program. “My deputies DO NOT routinely ask about immigration status during traffic stops,” former Harris County Sheriff Ron Hickman, who testified in favor of SB 4, said last year.
But immigrant advocates fear that the new bill, by green-lighting local police to make stops in the service of immigration enforcement and prohibiting jurisdictions from “discouraging” enforcement, could bring citizenship checks back to state and county policing.
One advocate, Cesar Espinosa, who came from Houston to testify against the bill, saw SB 4 as a continuation of Trump’s policies. “These people are taking order from a very anti-immigrant, xenophobic, and racist president and we’re seeing those kinds of legislations come down to the state level,” he said.
The bill, which Abbott hopes to sign next week after it passes both houses of the Texas Legislature, passed the committee 7–2 along party lines.
