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A tale of two sanctuary cities: Texas and California setting trends in immigration policy

FILE - In this Friday, July 8, 2016 file photo, Texas Gov. Greg Abbott, right, responds to questions during a news conference at City Hall in Dallas. Abbott says he'll work with top conservatives to try to remove from office sheriffs across his state who refuse to enforce federal immigration law. It's the latest sign that Abbott is moving hard to the right and more closely tracking the new Trump administration, which is plotting ways to crackdown on immigration. (AP Photo/Tony Gutierrez, File)

Since President Donald Trump signed his January executive order threatening to cut off certain federal funds to sanctuary cities, statehouses across the country have been racing in two different directions with new legislation that either follows the president's tough policy or bills that defy federal immigration enforcement and defend sanctuary cities.

Texas took the first major step in the direction of tougher immigration enforcement on Sunday, when Governor Greg Abbott signed into law SB-4, a controversial bill that will require all Texas cities and counties to comply with federal immigration laws and immigration detainer requests or face harsh penalties.

This latest action in Texas could make the state a standard bearer for other statehouses considering more stringent enforcement of federal immigration laws. But it also comes at a time of a strong countervailing trend in states like California, where lawmakers and immigration advocates are fighting to keep sanctuary policies in tact and block the efforts of the federal government to cut off funding.

Among the measures that will go into effect in Texas beginning on September 1, are subjecting local officials, including lawmakers, sheriffs and police chiefs to misdemeanor charges and jail time for not cooperating with Immigration and Customs Enforcement (ICE) immigration detainer requests, in other words, improperly shielding illegal immigrants wanted by federal authorities. They can also face fines as high or fines as high as $25,500. The bill also allows police to question a person's immigration status during routine stops, a change in the law that has many immigration advocates and even law enforcement officials up in arms.

In the hours after the bill was signed, lawsuits were initiated on both sides. On Monday, the League of United Latin American Citizens (LULAC) filed suit, calling into question the constitutionality of the provision that allows police to demand immigration papers during a routine encounter.

The state of Texas fired back with its own lawsuit preemptively asking the Western District Court of Texas to rule that the new law does not violate constitutional protections against undue search and seizure or the right to equal protection against discrimination, legal questions that the state anticipates from opponents of the law.

The lawsuit is being brought against prominent supporters of sanctuary policies including Sheriff Sally Hernandez of Travis County, Austin Mayor Steve Adler and all City Council members, and the Mexican American Legal Defense and Educational Fund.

Mayor Adler's spokesman, Jason Stanford was somewhat puzzled by the preemptive lawsuit, saying the state Attorney General Ken Paxton was essentially "accusing the mayor and others of violating a law that hasn't taken effect yet."

Already, the city of Austin has seen a chilling effect as a result of the passage of SB-4, Stanford explained, with members of the Hispanic community "measurably less interactive" with police officers. "[They are] less likely report crime, less likely to step up as witnesses because ICE had grabbed people at our courthouse," he said. "It's all part of the same culture of fear and confusion that is making our city less safe."

Even as supporters of the bill celebrated its passage as a victory for the rule of law and public safety, members of the law enforcement community have emerged as some of the toughest critics. San Antonio Police Chief William McManus spoke on behalf of his colleagues throughout the state of Texas in saying that the law "will instill a lot of fear" and could deter individuals from cooperating with the police.

"There is nothing positive that this bill does in the community or in law enforcement," the police chief asserted.

The successful passage of the Texas bill could contribute momentum to other statehouses fighting to impose tougher penalties on sanctuary jurisdictions. According to the National Conference of State Legislatures, there are dozens of pending sanctuary city bills pending in statehouses across the country, many proposing to suspend state funding for jurisdictions or educational institutions that fail to comply with federal immigration enforcement.

Take the quiz: How much do you know about sanctuary cities?

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According to Ira Mehlman, communications director for the Federation for American Immigration Reform (FAIR), Texas is a leader among the states who want to enforce federal immigration laws and could set a standard for states where legislation is pending.

"I think they are blazing the trail for other states that have been wanting to do this for a long time," Mehlman said, noting that the new Texas law "puts teeth in anti-sanctuary policies."

He also recognized the opposing trend in pro-sanctuary policies, like California's so-called sanctuary state bill (SB-54). The bill, which passed the state Senate on April 3, would no longer require local law enforcement to cooperate or notify federal immigration authorities in cases related to deportation. It would also prohibit law enforcement from asking about an individual's immigration status and prohibit the use of local law enforcement resources to help federal immigration enforcement.

"With regard to immigration, California tends to take the lead among those handful of states that want to do everything they can to impede enforcement of federal immigration laws," Mehlman said, explaining that other states could follow as they tend to "take their cues" from California.

Illinois, Nevada and New York are all actively considering measures that would restrict local and state cooperation with federal immigration enforcement agencies. This can include not honoring federal immigration detainer requests that require local law enforcement to hold an arrested individual or convicted criminal until the feds can pick them up for deportation.

Maryland was also weighing a sanctuary state bill until lawmakers suddenly pulled the bill in April. The decision to kill the bill followed public outrage over the rape of a high school girl in Montgomery County by two men, one of whom obtained sanctuary in the state despite facing charges of immigration violations in Texas.

In recent days, Montgomery County Maryland, which still maintains its sanctuary policies, faced another crisis, when an 18-year-old citizen of El Salvador was released on bond by county authorities after he stole an AR-15 assault rifle from an unmarked police car. ICE filed an immigration detainer with the county, but it was ultimately ignored.

"We are starting to see states and localities moving in those two directions," said Philip Wolgin, immigration policy director at the Center for American Progress. The fight has fallen to the state level in order to "fill the vacuum" left by the federal government, which has so far failed to address comprehensive immigration reform. "Some states are taking a pro-immigrant approach and some states are taking an anti-immigrant approach," he noted.

Whether California or Texas becomes the "vanguard" of immigration policy, Wolgin said, will depend on the outcomes of a host of pending legal challenges for and against sanctuary policies.

During his Facebook Live signing ceremony, Governor Abbott stated that key parts of the new sanctuary city law have "already been tested at the United States Supreme Court and approved there." However, Wolgin has some doubts, noting a recent Supreme Court case that could apply to the Texas bill.

In 2012, the Supreme Court ruled that a number of provisions in an Arizona immigration law (SB-1070) were unconstitutional, including a provision allowing local law enforcement to routinely demand individuals' immigration papers. The court favored the Obama Justice Department in finding that that provision and others essentially usurped federal immigration enforcement authorities.

But with Donald Trump in office, it is unlikely Attorney General Jeff Sessions would bring a similar suit against a state that is rigorously implementing the administration's own policy.

"I don't see any inclination on the part of Jeff Sessions to bring a lawsuit against Texas," Mehlman noted. "There's a new administration and they are far less likely to bring a lawsuit."

Trump has already indicated he is serious about enforcing the nation's existing immigration laws and compelling local authorities to cooperate with ICE and federal law enforcement.

After California District Judge William Orrick successfully blocked President Trump's sanctuary city executive order in April, Trump took to Twitter to warn that he would take the fight all the way to the Supreme Court.

Trump's order to withhold certain categories of federal funds from jurisdictions that don't comply with immigration enforcement laws was temporarily halted by Orrick, who ruled that the order exceeded the president's constitutional authority.

Even if his own executive order is tied up in court, President Trump can still wield significant influence, encouraging states to take a tougher approach to federal immigration enforcement. Trump's Justice and Homeland Security Departments are further supporting his policy by releasing weekly statistics documenting the hundreds of declined detainers and naming the specific cities, counties and states that have refused to cooperate with the feds.

According to recent polls, the president's position on sanctuary cities and the new Texas law is in step with the beliefs of the majority of Americans. According to a February poll, as many as 80 percent of American voters disapprove of sanctuary cities. The majority believe that cities that arrest illegal immigrants for crimes should be required to turn them over to federal authorities.

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