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Texas’ SB4 Is Not Just an Anti-Sanctuary Law, It’s an Anti-Human Rights Law

Katherine Culliton-González

This Mothers’ Day, as the mother of two stepsons who came from Guatemala and one son born here, I’m grateful that all three of my children and their father have their papers. That was literally the first thing that crossed my mind after Donald Trump was elected, and of course it was quickly followed by deep fear for everyone else. In the months since his election, my fears have unfortunately come true in the worst way. Thousands of Latino families have been separated by Trump’s draconian and clearly racist anti-immigrant policies, and millions of other immigrant family members live in fear of even dropping their children off at school. Trump has broadly labelled all immigrants as criminals, and his Attorney General and Secretary of Homeland Security have made it clear that this means any undocumented immigrant is subject to arrest and deportation. This is simply not democracy. It is freedom for children of prior, whiter generations of immigrants at the expense of the rising new majority.

This is why we fight for local sanctuary policies to protect immigrants, and the Constitution supports us. Fundamental human rights are the basis of democracy, and they include due process and freedom from discrimination. The U.S. Constitution very clearly states that no person shall be deprived of liberty by being detained without due process of law. Furthermore, every person should be equal before the law. The legal debate on sanctuary laws has thus far been about federalism (the powers of state and local vs. the federal government). At this juncture in history, it’s critically important to remember that not only federalism, but also fundamental human rights and principles of inclusive democracy support the sanctuary movement. It is not only local governments, but most importantly, individuals, families and communities, whose rights are at stake.

Maryland Attorney General Brian Frosh recently joined the New York State Attorney General in asserting that state and local police should not enforce federal civil immigration law because it would violate basic constitutional rights. Both state Attorney Generals made clear that federal requests that police detain immigrants, called “ICE detainer requests,” are not supported by probable cause of a crime; therefore, state and local police risk liability for due process violations if they honor them. Additionally, at least seven federal courts across have held local police departments liable for due process violations because they honored ICE detainer requests, and the new ICE detainer forms used by the Trump administration as of April 1 even further fail the constitutional standards requiring a judicial warrant backed by probable cause before a person is arrested. Attorney General Frosh also explained that local police participating in immigration enforcement run a high risk of unconstitutional racial profiling. So far, only Arizona’s Sheriff Joe Arpaio has been found guilty of such violations, but as Demos and LatinoJustice PRLDEF wrote in our “Sanctuary, Safety and Community” report earlier this year, others should be warned that the constitutional protections against racial profiling apply when they participate in federal immigration enforcement. And of course, the Constitution applies everywhere in the country.

In spite of fundamental human rights, Texas and a few other states enacted policies that are outright hostile to immigrant families. Last week, Texas Governor Abbott signed SB4, an anti-sanctuary law that requires local police to enforce federal civil immigration law and honor ICE detainer requests. One lawsuit has already been filed, arguing that this is prohibited by our system of federalism, because immigration enforcement falls under the exclusive jurisdiction of the federal government. Other lawsuits are expected, and Governor Abbott and the State of Texas even prematurely sued the Mexican American Legal Defense and Educational Fund (MALDEF), the Sherriff of Travis County, and numerous officials in Austin, under their own theory of federalism. But beyond the political power struggle of federalism, the State of Texas has ignored the constitutional protections of individual rights, and forgotten that sheriffs and other local officials who refuse to honor ICE detainer request do so because they must. Honoring ICE detainer requests without probable cause of a crime violates the Fourth Amendment. Furthermore, forcing local police to enforce federal civil immigration law, as SB4 does, is very likely to exacerbate racial profiling and violate the Equal Protection clause as well. Clearly, SB4 will be eventually struck down because it violates the fundamental human rights embodied in the U.S. Constitution, which are the very basis of democracy.

Unfortunately, such human rights violations are not happening only in Texas – they are happening in every county that does not have fulsome sanctuary policies, which amounts to nearly two-thirds of counties. In today’s USA, mothers of children of color, whether immigrant or not, have little guarantee their children will not be racially profiled by law enforcement and subject to arrest without due process of law. In places with proper sanctuary laws, at least local police are told they must not violate fundamental rights.

Every mother wants to teach her child that they live in a democracy where basic human rights are guaranteed. Historically, it has been mothers who overturned dictatorships, and mothers who have helped to end unjust wars. For this most recent mothers’ day, Demos signed onto letters opposing SB4, and saw #MomsRising and other groups protest racism and xenophobia. Across Texas, hundreds turned out for the Mothers’ Day protest of SB4. As we fight for sanctuary, we the people, the demos, aren’t fighting for federalism. We are fighting for fundamental human rights, including family unity, and we will keep up the resistance until all mothers can be sure to see their children coming home.