Update on Immigration Legislation and the Texas Special Session

Several immigration bills have passed in other states this year and a couple controversial ones are currently pending in the Texas Legislature’s special session.  Below we discuss the two bills pending in Texas—including the “Sanctuary Cities” bill that prevents local governments from having policies prohibiting law enforcement from asking about a person’s immigration status.  We also explain why these bills are now more likely to pass due to rules the lieutenant governor has established for the special session.  Then we will also summarize important Arizona-style immigration legislation that has passed in other states and the challenges these laws are already facing, as well as the recently re-introduced federal DREAM Act.

Pending Texas Legislation
Two bills which contain provisions similar to Arizona’s controversial SB 1070 both failed during the regular session of the Texas Legislature, but are now pending in the legislature’s 30-day special session that began on Tuesday, May 31. They could come up for a vote very soon. During regular session, these bills were known as HB (“House Bill”) 12 and SB (“Senate Bill”) 9, and during the special session, they were refiled, in nearly identical forms, as HB 9 and SB 9.

HB 9 (formerly known as HB 12 which is often referred to in the media as the “Sanctuary Cities” bill) would prohibit a government entity from adopting a rule, order, ordinance, or policy to stop state and federal law enforcement officers from inquiring about a person’s immigration status. Law enforcement may then send information to, or receive information from, the United States Citizenship and Immigration Services regarding the person’s immigration status. The bill authorizes the Texas Attorney General to file a civil suit against any entity that violates this policy by creating a rule preventing immigration inquiries.

Supporters of the Sanctuary Cities bill believe that law enforcement should not be forbidden to ask about immigration status when someone is legally detained, for there is a need to crack down on undocumented immigrants in Texas. However, critics are concerned that this bill will keep local and state law enforcement officers from their primary job of keeping communities safe by requiring them to devote time to federal immigration issues. Although the bill explicitly states that an officer may not consider race, color, language, or national origin to determine whom to question about status, opponents of the bill worry that it could lead to racial profiling. Additionally, they argue the bill would be costly to taxpayers because more funding would be needed to train local officers in immigration law, and there would likely be lawsuits challenging the validity of the law (as there has been in Arizona, where several sections of SB 1070 have been enjoined) as well as lawsuits if there are mistakes in enforcement of the law or alleged discrimination.

Some critics also argue that the Sanctuary Cities legislation addresses a problem that does not exist.  The term “sanctuary cities” is sometimes used to give the impression that certain communities provide “sanctuary” by sheltering or protecting undocumented immigrants.  In reality, some cities have community policing policies in which police do not arrest immigrants solely for being undocumented.  This is done to encourage non-citizens to cooperate with police in community crime prevention. In these “sanctuary cities,” police are still authorized to arrest anyone for criminal activity, non-citizens and citizens alike, and police may still work with the Department of Homeland Security to identify foreign-born criminals  This legislation would make such policies illegal.

Governor Rick Perry made HB 12 an “emergency item” during regular session, signaling the need for an expedited process, however, the bill died during regular session. It passed the Texas House of Representatives and was passed out of the Senate’s Transportation and Homeland Security Committee, but the Senate could not garner the two-thirds majority vote that was necessary to bring HB 12 to the floor for a vote by the May 25 deadline.

SB 9 (also known as the “Border and Homeland Security Act”) mirrors some parts of the Sanctuary Cities bill but differs in many ways. Similar to Sanctuary Cities, SB 9 calls for the state to withhold grant money from local governments and law enforcement if they create policies prohibiting their employees from questioning the immigration status of detainees. Under SB9, a person must be arrested, taken into custody, and transported to a place of detention before law enforcement can investigate him or her for immigration violations while the Sanctuary Cities bill allows law enforcement to investigate “any person lawfully detained for the investigation of a criminal offense or arrested.” Neither Sanctuary Cities nor SB 9 explicitly requires that an officer have reasonable suspicion or probable cause to investigate. SB 9 also calls for implementation of the federal Secure Communities program, which requires state law enforcement to share jail inmate’s fingerprints with immigration officials. Additionally, like Sanctuary Cities, SB 9 requires Texas businesses to use the controversial federal E-Verify system to guarantee that employees are eligible for employment.

However, SB 9 lists some immigration provisions in addition to those in Sanctuary Cities. SB 9 calls for more border checkpoints for people travelling from Texas to Mexico. The bill safeguards the Department of Public Safety’s (DPS) practice of being able to check a person’s citizenship status before issuing a drivers license, and the DPS would be required to index the immigration status of each holder of a license or personal identification certificate. In addition, SB 9 includes other provisions that are somewhat unrelated to immigration.

Supporters of SB 9 say that it is less invasive than Sanctuary Cities and that it will strengthen homeland security, but opponents of the bill have the same concerns and criticisms as they do with Sanctuary Cities. Opponents also argue that SB 9’s additional provisions will add even more stress on taxpayers than Sanctuary Cities would.

During regular session, SB 9 was originally offered in the Senate’s Transportation and Homeland Security Committee as a substitute bill for HB 12. However, the Senate committee decided to let the Senate hear both HB 12 and SB 9. Now both these bills have been resurrected. In their refiled, but mostly identical forms, both HB 9 (formerly known as HB 12) and SB 9 could potentially pass during the special session.

The Special Session
Governor Perry immediately called for the 30-day special session after the regular session ended on May 30 because the Legislature failed to meet their requirement of balancing the state budget. The special session extended the time that the House and the Senate could hear and pass bills. The Governor has sole control over the agenda of topics that the Legislature will hear. Though special sessions only last 30 days, the Governor may call for as many special sessions as he deems necessary. Because Governor Perry deemed the Sanctuary Cities bill an emergency during regular session, it was no surprise when he added the abolishment of sanctuary cities, the federal government’s Secure Communities program, and the issuance of driver’s licenses and personal identification certificates to the short list of issues on Tuesday, June 7.

During regular session, the Senate needs a two-thirds super-majority vote to pass a bill, however, Lieutenant Governor Dewhurst implemented a simple majority rule for the special session in an effort to get bills passed. With this major change, the bills are expected to pass due to strong Republican support. Republicans hold nineteen seats in the Texas Senate, and only sixteen votes are needed to pass a bill into law on a simple majority vote.

If the Legislature does not hear the Sanctuary Cities bills before the end of the 30-day session, the session will either end completely or Governor Perry may call for another 30-day session to hear the remaining issues.

Texas Legislation: SB 1631
This bill was proposed eliminate the current Texas policy of allowing in-state tuition rates for some undocumented residents who have lived in Texas for three or more years. This bill went to a public hearing, but the Senate’s Higher Education committee did not take any further action. Neither the Texas Senate nor the House voted on the bill during the regular legislative session and the bill has not been added to the special session agenda.

Bills similar to Arizona’s SB 1070 that have passed in other States

Georgia Legislation: HB 87 Illegal Immigrant Reform and Enforcement Act of 2011
On May 13, 2011, Georgia Governor Nathan Deal signed HB 87 into law, allowing local and state police to investigate the immigration status of certain suspects and transport undocumented immigrants to jail. The bill is slightly different from the similar Arizona bill (SB 1070) in that it does not require police to inquire about a person’s immigration status; it just gives them the option to do so. Legislators intentionally changed this detail to avoid the legal troubles that the Arizona law has already encountered. HB 87 also requires many Georgia businesses to use the federal E-Verify system to ensure new hires are eligible to work in the United States unless the business has ten employees or less.

On June 2, a coalition of civil rights groups joined together to file a class action lawsuit against this bill. The law is challenged on four grounds. First, lawsuit states that it interferes with federal power and authority over immigration matters and thereby does not comply with the Supremacy Clause. Secondly, it unlawfully authorizes and requires unreasonable seizures and arrests in violation of the Fourth Amendment. Third, the lawsuit asserts that the law restricts the Constitutional right to travel freely throughout the United States, and fourth, it violates the Equal Protection and Due Process Clauses by unlawfully discriminating against people who hold certain kinds of identification documents. Georgia joins Arizona, Utah, and Indiana in defending a law of this sort in court.   In addition, as in Arizona, business and tourism are being affected because some organizations are boycotting the state.

Utah Legislation: HB 497
Utah’s governor signed this Arizona-like bill into law in March, authorizing local police to investigate and arrest people for perceived immigration violations. Police officers do not receive training on when they should investigate.  In addition, the Utah law does not require law enforcement to have a “reasonable suspicion” that the person is undocumented, which is required in the Arizona law. Therefore, Utah law enforcement officers have even broader authority to investigate than those in Arizona.

Within fifteen hours of the bill being signed into law, a civil-rights group brought a lawsuit seeking a preliminary injunction against the law. Because Utah was unable to argue that there would not be irreparable harm to people if the law remained in effect during the first hearing, a federal judge blocked the law from being enforced. The case is still pending and is scheduled to be argued on July 14, 2011.

This bill was part of a trio of immigration laws passed in Utah. HB 116 created a guest worker program that is separate from the federal farm workers program and allows undocumented individuals to work legally in Utah if they meet certain requirements. In order to qualify for the program, a person who is undocumented may live and work legally in Utah for two years if he or she: worked or lived in Utah before May 10, 2011; has proof of a pending job; has undergone a criminal background check; and pays a fee of between $1,000 and $2,500 depending on whether he or she entered the country legally or illegally. Additionally, for this law to go into effect, the Federal Government must grant Utah an unprecedented waiver of their right to enact and enforce immigration laws. Utah also passed HB 466, which created a 27-person commission to recommend various immigration policies in Utah and authorizes a pilot program for a legal exchange of workers between the Mexican state of Nuevo Leon and Utah. This bill will also require a waiver from the federal government to give Utah the power to make such a law.

Indiana SB 590
Indiana’s governor signed SB 590 in May, officially codifying a law that is quite similar to Arizona’s immigration bill. The bill forces state businesses to comply with the federal E-Verify system and gives state law enforcement the power to enforce federal immigration laws. The bill threatens business’s tax credits if they hire undocumented immigrants, and it denies unemployment benefits to them. A law enforcement officer must have probable cause to submit a complaint about a suspected illegal alien to the United States Immigration and Customs Enforcement office. When it was first introduced, SB 590 required police officers to ask for proof of citizenship or legal immigration status during any lawful stop, seizure, detention, or arrest, but the final version of the bill excluded this provision. Recently, the American Civil Liberties Union along with the National Immigration Law Center filed a lawsuit against this law. They argue that the bill is unconstitutional because it authorizes police to make warrantless arrests based on assumed immigration status and because it criminalizes mere use and acceptance of commonly used consular identification cards.

DREAM Act
The DREAM Act was first introduced in 2001 both in the United States Senate and the House of Representatives. This act provides a pathway to legal permanent status (commonly known as a “green card”) for students who came to the United States before turning 16, are under age 35, have lived in the United States for at least five years, have a high school diploma, are of good moral character, and intend to enlist in the military or attend a institution of higher education. People who meet these preliminary qualifications receive a conditional permanent residency status that is valid for six years. Under this conditional permanent residency status, the noncitizens must maintain a sustainable living situation, not be discharged from the military except for honorable reasons, and not become deportable for violations of immigration law. After six years, they may apply for a green card if they have maintained a good moral character and ongoing U.S. residency, and have completed at least two years toward a bachelors degree or higher or served in the military service for at least two years.  With this green card, they can later apply to be United States citizens.

Last year the DREAM Act passed in the House, but in the Senate the bill never garnered the sixty votes it needed to close debate and bring the bill for a vote. This was due to a 55-41 vote, along party lines, to keep debate open, a Republican filibuster. On the day after President Obama’s speech on immigration in El Paso on May 10, 2011, the act was reintroduced in both the House by Representative Berman (D-CA) and in the Senate by Senator Durbin (D-IL) in essentially an identical form as was introduced last year. President Obama continues to support the DREAM Act.  Analysts predict the bill will follow a similar fate as it did last year and not get the support of a majority in the Senate.

By Betsy Stukes, HRI Summer Legal Intern & J.D. Candidate, The University of Texas School of Law

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