There are several reasons to challenge the constitutionality of SB4. It violates the First, Fourth and Fourteenth amendments, as well as the Constitution’s Supremacy Clause.
SB4 violates the Equal Protection Clause of the 14th Amendment.
SB4 violates the Equal Protection Clause of the Fourteenth Amendment. It discriminates against Texans based on their race, national origin and ethnicity. It was enacted with the purpose of discriminating against Latinos and undocumented immigrants.
SB4 will disproportionately impact Latino Texans. Police will profile them as potential undocumented immigrants. Brown-skinned or Spanish-speaking Texans can be asked about their immigration status even during routine traffic stops. This intentional racial discrimination violates the Equal Protection Clause.
SB4 also violates the Equal Protection Clause because it allows only citizens, as opposed to permanent residents or other lawful immigrants, to file complaints of noncompliance with the law.
SB4 further violates the Equal Protection Clause because it strikes down any ordinance or policy adopted locally to not enforce immigration law. Therefore, it robs immigrant and Latino communities of the right to influence local policymakers to enact protections for immigrants.
SB4 is part of a pattern and practice of unconstitutional laws in Texas that discriminate against Hispanic residents. There are at least six laws that, according to federal courts, have been in violation of the Equal Protection Clause of the U.S. constitution. These include laws that drew congressional districts and legislative districts with the specific intent of disenfranchising Hispanic voters. As well as “voter ID” requirements with the specific intent of disenfranchising Hispanic voters and voters from protected classes.
SB4 violates the Supremacy Clause of the U.S. Constitution. Congress, not the states, has the power to create immigration law.
The United States government has exclusive authority over the field of immigration. States cannot change or create their own immigration laws. Under federal immigration law, local authorities maintain discretion whether to fulfill civil detainer requests to hold someone beyond when they would normally be released.
But SB4 requires local jails to mandatorily comply with immigration detention requests, while federal law currently says compliance is voluntary.
The State of Texas has created its own detainer program and is attempting to regulate immigration. SB4 does not simply ensure cooperation with federal immigration law enforcement. It creates new immigration regulation.
Immigration is strictly the federal government’s domain. SB4 pre-empts and treads on the authority of federal government. States do not have the authority to do this due to the Supremacy Clause.
SB4 violates Fourth Amendment protection against unreasonable seizure.
SB4 requires local jails to comply with all immigration detainers. Based on current federal law, those detainers are requests from the federal government to local jails to hold someone beyond when they would normally be released. Detainers are sometimes issued in error. By making all detainers mandatory, SB4 can lead to unconstitutional detention.
SB4 violates First Amendment free speech protection for elected and appointed officials.
SB4 threatens civil and criminal punishment of any elected or appointed officials if they endorse any policy that limits local enforcement of immigration laws. For example, if a state representative or a city council member expresses opposition to SB4, they are subject to being jailed and removed from office.
If a police chief sets a local policy that keeps officers from asking about immigration status, or a police officer does not comply with the law, they are subject to being jailed.
If a municipality does not comply with SB4, it may be subject to fines up to $25,500 for each day of noncompliance after the first day. The State may impose these fines if any officer or employee of the municipality fails to comply with SB4.
Due to First Amendment protections, government cannot tell anyone – including elected and appointed officials – what they can say or cannot say based on the content of what they are saying. SB4 does this.