City of El Cenizo, Texas v. State of Texas , 890 F.3d 164 ( 2018 )

Case: 17-50762 Document: 00514463217 Page: 1 Date Filed: 05/08/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2018
No. 17-50762
Lyle W. Cayce
Clerk
CITY OF EL CENIZO, TEXAS; RAUL L. REYES, Mayor, City of El Cenizo;
TOM SCHMERBER, County Sheriff; MARIO A. HERNANDEZ, Maverick
County Constable Pct. 3-1; LEAGUE OF UNITED LATIN AMERICAN
CITIZENS; MAVERICK COUNTY,
Plaintiffs - Appellees Cross-Appellants
CITY OF AUSTIN, JUDGE SARAH ECKHARDT, in her Official Capacity as
Travis County Judge; SHERIFF SALLY HERNANDEZ, in her Official
Capacity as Travis County Sheriff; TRAVIS COUNTY; CITY OF DALLAS,
TEXAS; THE CITY OF HOUSTON,
Intervenors - Plaintiffs - Appellees Cross-Appellants
v.
STATE OF TEXAS; GREG ABBOTT, Governor of the State of Texas, in his
Official Capacity, KEN PAXTON, Texas Attorney General,
Defendants - Appellants Cross-Appellees
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EL PASO COUNTY; RICHARD WILES, Sheriff of El Paso County, in his
Official Capacity; TEXAS ORGANIZING PROJECT EDUCATION FUND; JO
ANNE BERNAL, El Paso County Attorney in her Official Capacity; MOVE
San Antonio,
Plaintiffs - Appellees Cross-Appellants
TEXAS ASSOCIATION OF HISPANIC COUNTY JUDGES AND COUNTY
COMMISSIONERS,
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Intervenor - Plaintiff - Appellee Cross-Appellant
v.
STATE OF TEXAS; GREG ABBOTT, Governor; KEN PAXTON, Attorney
General; STEVE MCCRAW, Director of the Texas Department of Public
Safety,
Defendants - Appellants Cross-Appellees
------------------------------------------------------------------------------------------------------------
CITY OF SAN ANTONIO; BEXAR COUNTY, TEXAS; REY A. SALDANA, in
his Official Capacity as San Antonio City Councilmember; TEXAS
ASSOCIATION OF CHICANOS IN HIGHER EDUCATION; LA UNION DEL
PUEBLO ENTERO, INCORPORATED; WORKERS DEFENSE PROJECT;
CITY OF EL PASO,
Plaintiffs - Appellees Cross-Appellants
CITY OF AUSTIN,
Intervenor Plaintiff - Appellees Cross-Appellants
v.
STATE OF TEXAS; KEN PAXTON, sued in his Official Capacity as Attorney
General of Texas; GREG ABBOTT, sued in his Official Capacity as Governor
of the State of Texas,
Defendants - Appellants Cross-Appellees
Appeals from the United States District Court
for the Western District of Texas
Before JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
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We withdraw our prior opinion of March 13, 2018, City of El Cenizo v.
Texas, 885 F.3d 332 (5th Cir. 2018), and substitute the following, the purpose
of which is to eliminate reference to United States v. Gonzalez-Longoria,
831 F.3d 670 (5th Cir. 2016) (en banc), given that decision’s abrogation by the
Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 1
Texas cities, counties, and local officials challenge Senate Bill 4 (“SB4”),
a Texas law that forbids “sanctuary city” policies throughout the state. SB4
prohibits local authorities from limiting their cooperation with federal
immigration enforcement, and it requires local officers to comply with
Immigration and Customs Enforcement (“ICE”) detainer requests. In their
pre-enforcement lawsuit, the plaintiffs alleged a battery of constitutional
violations: (I) SB4 is preempted by federal immigration law, (II) SB4’s
“endorse” prohibition violates the First and Fourteenth Amendments,
(III) SB4’s ICE-detainer mandate violates the Fourth Amendment, and
(IV) SB4’s phrase “materially limits” is unconstitutionally vague under the
Fourteenth Amendment. The district court issued a preliminary injunction,
enjoining several of the law’s provisions. Texas appeals the injunction, and the
plaintiffs cross-appeal the district court’s refusal to issue a broader injunction.
With one exception, SB4’s provisions do not, on their face, violate the
Constitution. For the following reasons, we uphold the statute in its entirety
except for the application of the “endorsement” prohibition, Tex. Gov’t
Code § 752.053(a)(1), to elected officials.
1 Judge Edward Prado, a member of the original panel in this case, retired from the
Court on April 2, 2018, and therefore did not participate in this decision. This matter is
decided by a quorum. 28 U.S.C. § 46(d).
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BACKGROUND
I. Senate Bill 4
In May 2017, the Texas Legislature enacted Senate Bill 4 to prohibit
sanctuary city policies. The law imposes duties on certain state officials and
provides civil and criminal liability for violations of those duties. Three parts
of the law are critical to this case: (A) the immigration-enforcement provisions,
(B) the ICE-detainer mandate, and (C) the penalty provisions.
A. Immigration-Enforcement Provisions
As codified at Texas Government Code § 752.053(a)-(b), SB4 forbids local
entities from limiting the enforcement of federal immigration law.
Subsections (a)(1) and (a)(2) of Section 752.053 provide broad prohibitions.
Under subsection (a)(1), a local entity may not “adopt, enforce, or endorse a
policy under which [it] prohibits or materially limits” immigration
enforcement. Id. § 752.053(a)(1). After subsection (a)(1) deals with anti-
cooperation “policies,” subsection (a)(2) further prohibits any “pattern or
practice” that similarly frustrates enforcement. Id. § 752.053(a)(2).
Following the general prohibitions in (a)(1) and (a)(2), subsection (b)
enumerates concrete examples of immigration-enforcement activities that a
local entity may not “prohibit or materially limit.” Id. § 752.053(b). These
include (b)(1) “inquiring into the immigration status” of lawfully detained
individuals, (b)(2) sharing immigration-status information with federal
agencies, and (b)(3) “assisting or cooperating with a federal immigration officer
as reasonable or necessary, including providing enforcement assistance.” Id.
§ 752.053(b)(1)-(3). 2
2For convenience, these three provisions will be referred to as the “status-inquiry,”
“information-sharing,” and “assistance-cooperation” provisions.
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The prohibitions in Section 752.053 apply broadly to any “local entity or
campus police department.” Id. § 752.053(a)-(c). SB4 defines “local entity” to
include the governing bodies of counties and municipalities as well as officers
or employees of those authorities, including “a sheriff, municipal police
department, municipal attorney,[ ] county attorney[,] . . . district attorney or
criminal district attorney.” See id. § 752.051(5)(A)-(C). But SB4 excludes
hospitals, school districts, and certain community centers—as well as officers
employed by these institutions—from the law’s requirements. See id.
§ 752.052(a)-(f).
B. ICE-detainer Mandate
As codified at Texas Code of Criminal Procedure article 2.251, SB4’s ICE-
detainer mandate requires law-enforcement agencies to comply with detainer
requests submitted by ICE. An ICE detainer is a written request to state or
local officials, asking them (1) to notify the Department of Homeland Security
(“DHS”) as soon as practicable before an alien is released and (2) to maintain
custody of the alien for up to 48 hours beyond the preexisting release date so
that DHS may assume custody. 3 As of April 2017, ICE must make this request
using Form I-247A, which must be accompanied by a signed administrative
warrant. Form I-247A states that DHS has determined that there is probable
cause that the subject of the request is a removable alien, and ICE officers
check one of four boxes on the form to indicate the basis for probable cause. 4
3 See U.S. Immigration and Customs Enforcement, Policy No. 10074.2: Issuance of
Immigration Detainers by ICE Immigration Officers (Mar. 24, 2017), available at
https://perma.cc/T6FJ-FXL3.
4 See U.S. Department of Homeland Security, Immigration Detainer – Notice of
Action, DHS Form I-247A (3/17), available at https://perma.cc/RH4C-5D8Q.
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SB4’s ICE-detainer mandate applies whenever “[a] law enforcement
agency [ ] has custody of a person subject to” an ICE detainer. Tex. Code Crim.
Proc. art. 2.251(a). Under subsection (a), the mandate requires law
enforcement agencies to “comply with, honor, and fulfill” ICE’s requests. Id.
It also requires that the individual in custody be informed he “is being held
pursuant to” an ICE detainer. Id. art. 2.251(a)(2).
Subsection (b) provides a lone exception to the detainer mandate: law
enforcement agencies need not comply with detainers if shown “proof that the
person is a citizen of the United States or . . . has lawful immigration status.”
Id. art. 2.251(b). Subsection (b) states that such “proof” could include a Texas
driver’s license or similar government-issued ID. Id. art. 2.251(b).
C. Penalty Provisions
SB4 is enforced through civil and criminal penalties by Texas’s Attorney
General. Private citizens may file complaints with the Attorney General,
alleging by sworn statement that a local entity is violating the enforcement
provisions. See Tex. Gov’t Code § 752.055(a). Upon determining that such a
complaint is valid, the Attorney General may file suit in state court to enforce
the law. See id. § 752.055(b). If a court finds there has been a violation, local
entities may be subject to fines of $1,000 to $1,500 for a first violation and
$25,000 to $25,500 for subsequent ones, with each day of continuing violation
constituting a separate violation. See id. § 752.056(a)-(b). If the Attorney
General is presented with evidence that a public officer has violated the
enforcement provisions, SB4 requires the Attorney General to file an
enforcement action. See id. § 752.0565(b). Public officers found guilty of
violating the law are subject to removal from office. See id. § 752.0565(c).
SB4 makes certain officials’ failure to comply with SB4’s ICE-detainer
provision a misdemeanor. See Tex. Penal Code § 39.07(a)-(c). SB4 further
requires Texas to indemnify local entities against any claim arising out of their
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good-faith compliance with an ICE-detainer request. See Tex. Gov’t Code
§ 402.0241.
II. Prior Proceedings
Before SB4 could go into effect, several Texas cities, counties, local law-
enforcement and city officials, and advocacy groups challenged the law in three
consolidated actions. The plaintiffs sought a preliminary injunction, and the
district court found the plaintiffs likely to prevail on the following claims:
• Section 752.053(b)(3)’s assistance-cooperation provision is field
and conflict preempted by federal immigration law;
• Section 752.053(a)(1)’s “endorse” prohibition violates the First and
Fourteenth Amendments because it is overbroad, discriminates on
the basis of viewpoint, and is unconstitutionally vague;
• Section 752.053(a)(1) and (a)(2)’s “materially limits” prohibitions
are unconstitutionally vague under the Fourteenth Amendment;
and
• Article 2.251’s ICE-detainer mandate violates the Fourth
Amendment.
Enjoining these provisions, the district court nevertheless rejected the
plaintiffs’ claims that SB4 was preempted more generally.
Following the district court’s order, Texas moved this court to stay the
injunction pending appeal. The stay panel granted the motion in part, finding
Texas likely to prevail on the Fourth Amendment and preemption claims, and
stayed the injunction as to article 2.251’s ICE-detainer mandate and
Section 752.053(b)(3)’s assistance-cooperation provision. City of El Cenizo v.
Texas, No. 17-50762, 2017 WL 4250186, at *2 (5th Cir. Sept. 25, 2017) (per
curiam). The stay panel left the injunction in place as to the “endorse” and the
“materially limits” prohibitions, concluding that possible limiting
constructions of these terms “are best left for the time when this court’s ruling
would have more finality.” Id. Texas now appeals the preliminary injunction,
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and the plaintiffs cross-appeal the district court’s refusal to enjoin SB4
completely.
STANDARD OF REVIEW
“To be entitled to a preliminary injunction, the applicants must show
(1) a substantial likelihood that they will prevail on the merits, (2) a
substantial threat that they will suffer irreparable injury if the injunction is
not granted, (3) their substantial injury outweighs the threatened harm to the
party whom they seek to enjoin, and (4) granting the preliminary injunction
will not disserve the public interest.” Tex. Med. Providers Performing Abortion
Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations
omitted). This court “review[s] a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.”
Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 537 (5th Cir. 2013)
(citations omitted). Because the issues raised by the parties substantially
overlap, we discuss the appeal and cross-appeal together.
DISCUSSION
I. Preemption
Under the federal Constitution, “both the National and State
Governments have elements of sovereignty the other is bound to respect.”
Arizona v. United States, 567 U.S. 387, 398, 132 S. Ct. 2492, 2500 (2012).
Because dual sovereignty allows for conflicts between state and federal
legislation, the Constitution’s Supremacy Clause provides that federal
legislation “shall be the supreme Law of the Land.” U.S. Const. art. VI, cl. 2.
Congress may preempt state legislation “by enacting a statute containing an
express preemption provision,” Arizona, 567 U.S. at 399, 132 S. Ct. at 2500-01,
but this case does not involve express preemption. Rather, the plaintiffs allege
two forms of implied preemption: field preemption and conflict preemption.
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A. Field Preemption
Field preemption occurs when “States are precluded from regulating
conduct in a field that Congress, acting within its proper authority, has
determined must be regulated by its exclusive governance.” Arizona, 567 U.S.
at 399, 132 S. Ct. at 2501. Although the Supreme Court has recognized field
preemption claims, it has indicated courts should hesitate to infer field
preemption unless plaintiffs show “that complete ouster of state power
including state power to promulgate laws not in conflict with federal laws was
‘the clear and manifest purpose of Congress.’” De Canas v. Bica, 424 U.S. 351,
357, 96 S. Ct. 933, 937 (1976) (quoting Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U.S. 132, 146, 83 S. Ct. 1210, 1219 (1963)); see also Villas at
Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 560 (5th Cir. 2013)
(en banc) (Higginson, J., specially concurring) (noting that De Canas forecloses
sweeping field preemption claims). Analyzing the relevant federal legislation,
we conclude that the plaintiffs have not satisfied this standard. Congress has
not preempted the field that SB4 regulates.
The district court found only one provision of SB4 field preempted.
According to the district court, Section 752.053(b)(3)’s assistance-cooperation
provision impermissibly regulates the field of “immigration enforcement,”
which Congress fully preempted through comprehensive regulation. The
plaintiffs now argue that SB4 is field-preempted in its entirety because
Congress occupied the field of “federal-local cooperation in immigration
enforcement.”
As evidence that Congress has comprehensively regulated the relevant
field, the plaintiffs point to federal statutes regulating local cooperation with
immigration enforcement. See 8 U.S.C. § 1324(c) (permitting local officers to
make arrests for crimes of immigrant smuggling, transporting, or harboring);
id. § 1252c (authorizing local officers to make arrests to enforce criminal
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reentry provisions following INS “confirmation” of an individual’s immigration
status); id. § 1103(a)(10) (authorizing local officers to enforce immigration law
if the Attorney General has “determine[d] that an actual or imminent mass
influx of aliens . . . presents urgent circumstances”); id. §§ 1373, 1644
(requiring that state and local jurisdictions permit their officers to send,
receive, and maintain “information regarding the citizenship or immigration
status” of individuals).
In addition to these provisions, the plaintiffs rely heavily on 8 U.S.C.
§ 1357, which specifies immigration-officer functions and describes
circumstances under which state and local officers can perform those functions.
Under Section 1357, immigration-officer functions include the power “to
interrogate” and “to arrest” aliens without a warrant. Id. § 1357(a)(1)-(2).
Section 1357 further provides that states and political subdivisions can enter
into written agreements with the Federal Government, so that state and local
officers can perform immigration-officer functions. Id. § 1357(g). These
“287(g)” 5 agreements require that local officers must be “determined by the
Attorney General to be qualified”; that they receive appropriate training; that
their powers and duties are set forth in a written agreement; and that they are
“subject to the direction and supervision of the Attorney General.” Id.
§ 1357(g)(1)-(5). States and municipalities may not be required to enter into
these agreements. Id. § 1357(g)(9).
Section 1357 also contains a critical savings clause. Id. § 1357(g)(10).
Because the parties’ analysis focuses heavily on this provision, we quote it in
full:
The term “287(g)” refers to the section of the Immigration and Nationality Act that
5
authorized these agreements. Lunn v. Commonwealth, 78 N.E.3d 1143, 1158 (Mass. 2017).
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(10) Nothing in this subsection shall be construed to require an
agreement under this subsection in order for any officer or employee
of a State or political subdivision of a State—
(A) to communicate with the Attorney General regarding the
immigration status of any individual, including reporting
knowledge that a particular alien is not lawfully present in the
United States; or
(B) otherwise to cooperate with the Attorney General in the
identification, apprehension, detention, or removal of aliens not
lawfully present in the United States.
Id. § 1357(g)(10)(A)-(B). Therefore, although Section 1357 creates a highly
regulated scheme for adopting 287(g) agreements, it also expressly allows
cooperation in immigration enforcement outside those agreements. Id.
The plaintiffs’ reliance on these provisions is misplaced; SB4 and the
federal statutes involve different fields. Federal law regulates how local
entities may cooperate in immigration enforcement; SB4 specifies whether they
cooperate. One could perhaps define the field broadly enough to include both
SB4 and federal legislation, but the relevant field should be defined narrowly.
See Arizona, 567 U.S. at 400-01, 132 S. Ct. at 2501-02 (defining the relevant
field as “alien registration”); De Canas, 424 U.S. at 360 n.8, 96 S. Ct. at 938
(“Every Act of Congress occupies some field, but we must know the boundaries
of that field before we can say that it has precluded a state from the exercise
of any power reserved to it by the Constitution.”) (quoting Hines v. Davidowitz,
312 U.S. 52, 78-79, 61 S. Ct. 399, 410 (1941) (Stone, J., dissenting)).
To establish field preemption, moreover, the plaintiffs must prove that
federal law evinces “the clear and manifest purpose of Congress” to preclude
even complementary state legislation on the same subject. De Canas, 424 U.S.
at 357, 96 S. Ct. at 937. Federal law does not suggest the intent—let alone a
“clear and manifest” one—to prevent states from regulating whether their
localities cooperate in immigration enforcement. Section 1357 does not require
cooperation at all. Id. § 1357(g)(9). And the savings clause allowing
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cooperation without a 287(g) agreement indicates that some state and local
regulation of cooperation is permissible. See id. § 1357(g)(10)(A)-(B).
There is a further weakness in this field preemption claim. The plaintiffs
acknowledge that the Tenth Amendment prevents Congress from compelling
Texas municipalities to cooperate in immigration enforcement. See generally
Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997). Congress could
not pass a federal SB4. But if that is so, it seems impossible that Congress has
occupied the field that SB4 regulates.
The district court’s field preemption analysis underscores the difference
between SB4 and the relevant federal legislation. The district court found that
Section 1357 demonstrates Congress’s intent to retain oversight over local
immigration enforcement. But SB4 does nothing to strip oversight from the
Federal Government. In its operation, SB4 is similar to one of the city
ordinances some plaintiffs have themselves adopted. These ordinances
regulate whether and to what extent the local entities will participate in
federal-local immigration enforcement cooperation. 6 SB4 accomplishes the
same goal on a state-wide level. If SB4 is field preempted, so too are the local
ordinances that regulate “federal-local cooperation in immigration
enforcement.”
While this accentuates the substantive difference between SB4 and the
relevant federal legislation, the plaintiffs’ arguments focusing on congressional
intent sound principally in conflict preemption. We analyze these below.
B. Conflict Preemption
Conflict preemption occurs when “compliance with both federal and state
regulations is a physical impossibility,” Florida Lime & Avocado Growers,
6For instance, the Maverick County Sheriff’s Office has a policy under which it does
“not participate or cooperate in the arrests of individuals for civil immigration violations.”
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373 U.S. at 142-43, 83 S. Ct. at 1217, or when a state law “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress.” Hines, 312 U.S. at 67, 61 S. Ct. at 404. The district court held that
only Section 752.053(b)(3) and its related penalties were conflict preempted,
but the plaintiffs now argue that other provisions of SB4 impliedly conflict with
federal law. We conclude that none of SB4’s provisions conflict with federal
law.
i. The Assistance-Cooperation Provision
Section 752.053(b)(3) of the Texas Government Code forbids any action
that would “prohibit or materially limit” a specified official from “assisting or
cooperating with a federal immigration officer as reasonable or necessary,
including providing enforcement assistance.” See Tex. Gov’t Code
§ 752.053(b)(3). The plaintiffs argue that this provision is preempted for three
reasons: (1) it permits unilateral local immigration enforcement, (2) it
authorizes local officers to perform immigration-officer functions without a
287g agreement, and (3) it conflicts with the federal purpose that local
cooperation in immigration enforcement be entirely voluntary.
The plaintiffs’ first argument misconstrues the statute. Certainly,
Arizona emphasized the “principle that the removal process is entrusted to the
discretion of the Federal Government.” Arizona, 567 U.S. at 409, 132 S. Ct. at
2506. And the Court found Section 6 of Arizona’s SB1070 preempted because
it granted local officers authority to conduct unilateral warrantless arrests of
aliens suspected of being removable. See id. Unlike the statute in Arizona,
however, SB4’s assistance-cooperation provision does not authorize unilateral
enforcement. Indeed, the phrase “assisting or cooperating” requires a
predicate federal request for assistance. See Tex. Gov’t Code § 752.053(b)(3).
Subsection (b)(3) also specifies that this assistance and cooperation must occur
“with a federal immigration officer as reasonable or necessary.” Id.
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§ 752.053(b)(3). SB4’s assistance-cooperation provision does not permit local
officials to act without federal direction and supervision. 7
The plaintiffs’ second argument suggests that subsection (b)(3) conflicts
with federal law by allowing local officers to engage in immigration-officer
functions absent the requirements imposed by 8 U.S.C. § 1357(g). The
plaintiffs stress that these requirements—a written agreement, training, and
direct supervision by DHS—ensure that immigration enforcement adheres to
congressional priorities and prevents the mistreatment of noncitizens.
Section 752.053(b)(3) allegedly ignores these requirements, thereby
undermining federal law’s delicate balance of statutory objectives.
This argument discounts the savings clause in 8 U.S.C. § 1357(g)(10)(B),
which explicitly provides that a 287(g) agreement is not required for states
“otherwise to cooperate . . . in the identification, apprehension, detention, or
removal of aliens not lawfully present in the United States.” This provision
indicates that Congress intended local cooperation without a formal agreement
in a range of key enforcement functions. The plaintiffs rely on the word
“otherwise” to argue that permissible cooperation must categorically exclude
activities allowed under 287(g) agreements. We disagree. The savings clause
clarifies that a 287(g) agreement is not required “(A) to communicate . . . or
(B) otherwise to cooperate.” Id. § 1357(g)(10)(A)-(B). In context, the word
“otherwise” refers to subsection (A) and explains that subsection (B) permits
cooperation beyond communication—communication itself being a form of
7 We also note that this provision does not require cooperation unless it is “reasonable
or necessary.” Tex. Gov’t Code § 752.053(b)(3). Thus, as Texas acknowledges, this provision
does not generally preclude immigration-neutral policies regarding bona fide resource
allocation—e.g., policies regarding overtime or patrolling locations.
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cooperation. 8 The plaintiffs are wrong to suggest that this interpretation
makes 287(g) agreements superfluous. Under these agreements, state and
local officials become de facto immigration officers, competent to act on their
own initiative. By contrast, Section 1357(g)(10)(B) and SB4’s assistance-
cooperation provision permit no unilateral enforcement activity.
The plaintiffs also contend that this savings clause allows for only case-
by-case cooperation. Yet a “case-by-case” qualifier is absent from the statute’s
text. DHS guidance relied on by the plaintiffs also fails to support their
argument. This guidance critiques “systematic” local enforcement that
“conflicts with the policies or priorities set by the Federal Government or limits
the ability of the Federal Government to exercise discretion under federal law
whenever it deems appropriate.” 9 State action under SB4’s assistance-
cooperation provision will not conflict with federal priorities or limit federal
discretion in this way because it requires a predicate federal request. DHS
guidance does not suggest that subsection (b)(3) authorizes conduct beyond
what is allowed by Section 1357(g)(B)(10)’s savings clause. 10
The plaintiffs’ third conflict argument unnecessarily reads a preemptive
purpose into federal law; they claim that subsection (b)(3) makes mandatory
DHS guidance confirms our interpretation of “otherwise”: “[1357(g)(10)(A)] must be
8
read in light of subparagraph 1357(g)(10)(B), which immediately follows and provides for
state and local officers to ‘otherwise cooperate’ with the Secretary, without a written
agreement. Because the INA thus deems communications referred to in subparagraph (A) to
be another form of ‘cooperation’ . . . .” DHS, Guidance on State and Local Governments’
Assistance in Immigration Enforcement and Related Matters (emphasis in original),
available at https://www.dhs.gov/sites/default/files/publications/guidance-state-local-
assistance-immigration-enforcement.pdf.
9 See id.
Indeed, DHS guidance also negates the plaintiffs’ argument that SB4 goes beyond
10
Section 1357(g)(10)(B)’s savings clause by allowing for “assistance” as well as “cooperation.”
In describing the conduct allowed under the savings clause, the DHS guidance uses a form of
the word “assist” 40 times. See id.
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what Congress intended to be voluntary. To support this argument, the
plaintiffs observe that Section 1357(g) refers to both a “State” and a “political
subdivision,” and they infer that Congress specifically intended that “political
subdivisions” be able to choose whether to cooperate in immigration
enforcement. The plaintiffs support this reading by pointing to 8 U.S.C.
§ 1373, which—somewhat like SB4’s information-sharing provision—prohibits
states and local entities from refusing to share federal immigration-status
information. According to the plaintiffs, Section 1373 proves that Congress
could have required political subdivisions to cooperate more generally, but
expressly chose not to do so.
The plaintiffs’ arguments fail for two reasons. First, recent Supreme
Court decisions in this area undermine this implied congressional purpose. In
Arizona, for instance, the Supreme Court upheld state laws mandating
immigration-status inquiries. See Arizona, 567 U.S. at 411-415, 132 S. Ct. at
2508-10. Similarly, in Chamber of Commerce of U.S. v. Whiting, the Court
upheld a state law mandating that employers check immigration status with
an electronic-verification system. 563 U.S. 582, 611, 131 S. Ct. 1968, 1987
(2011) (concluding that state law fell within the Immigration Reform and
Control Act’s savings clause). In neither case did federal law require these
status inquiries. Yet the Supreme Court did not suggest that the states’
requirements conflicted with the congressional desire for voluntary
cooperation. Indeed, the Court has repeatedly rejected a “freewheeling judicial
inquiry into whether a state statute is in tension with federal objectives”
because “such an endeavor would undercut the principle that it is Congress
rather than the courts that preempts state law.” Whiting, 563 U.S. at 607,
131 S. Ct. at 1985 (citations omitted).
Second, and as noted earlier, the plaintiffs have admitted that, under the
Tenth Amendment, Congress could not compel local entities to enforce
16
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immigration law. If that is the case, Congress did not choose to make these
laws voluntary; it could not have made them mandatory. Section 1373 itself
has not been immune from Tenth Amendment scrutiny. See City of New York
v. United States, 179 F.3d 29, 34-37 (2d Cir. 1999) (upholding the federal
legislation “[g]iven the circumscribed nature of [the court’s] inquiry”).
Together with the shaky foundation of the plaintiffs’ imputed purpose, the
Tenth Amendment implications show that SB4’s assistance-cooperation
provision does not conflict with federal law. 11
ii. The Status-Inquiry and Information-Sharing Provisions
Section 752.053(b)(1) of the Texas Government Code, the status-inquiry
provision, forbids local entities from preventing officers from “inquiring into
the immigration status of a person under a lawful detention or under arrest.”
See Tex. Gov’t Code § 752.053(b)(1). Subsection (b)(2), the information-sharing
provision, forbids local entities from preventing officers from maintaining
immigration-status information and sharing it with federal agencies. See id.
§ 752.053(b)(2). Because the Arizona Court upheld equivalent sections of a
state statute, the plaintiffs’ arguments are insufficient to establish a conflict.
The plaintiffs contend that subsection (b)(1) authorizes “interrogation,”
which is an immigration-officer function under 8 U.S.C. § 1357(g)(a)(1). But it
is not clear why SB4’s status-inquiry provision authorizes impermissible
conduct but the provision upheld in Arizona did not. In Arizona, the state law
required local officers to make a “reasonable attempt . . . to determine the
immigration status” of anyone who has been lawfully detained if “reasonable
11Because the assistance-cooperation provision does not conflict with federal law,
neither do the penalties attached to it. When a state is allowed to substantively regulate
conduct, it must be able to impose reasonable penalties to enforce those regulations. See, e.g.,
Whiting, 563 U.S. at 605-07, 131 S. Ct. at 1984-85 (rejecting the dissent’s reliance on the
penalties attached to the valid regulation).
17
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suspicion exists that the person is an alien and is unlawfully present in the
United States.” Arizona, 567 U.S. at 411, 132 S. Ct. at 2507. The law also
required that “[a]ny person who is arrested shall have the person’s
immigration status determined before the person is released.” Id.
If anything, the statute in Arizona seems more problematic because it
mandates status inquiries where SB4 merely forbids preventing those
inquiries. True, the Court in Arizona seemed to assume that status inquiries
primarily involved communication with ICE and the statute in Arizona uses
the word “reasonable.” See Arizona, 567 U.S. at 411-12, 132 S. Ct. at 2507-08.
But no suspicion—reasonable or unreasonable—is required for officers to ask
questions of lawfully-detained individuals. See Muehler v. Mena, 544 U.S. 93,
101, 125 S. Ct. 1465, 1471-72 (2005). And it would be wrong to assume that
SB4 authorizes unreasonable conduct where the statute’s text does not require
it. See Arizona, 567 U.S. at 415, 132 S. Ct. at 2510 (quoting Huron Portland
Cement Co. v. City of Detroit, 362 U.S. 440, 446, 80 S. Ct. 813, 817-18 (1960))
(noting that the Court’s precedents “enjoin seeking out conflicts between state
and federal regulation where none clearly exists”). 12
Regarding subsection (b)(2), the plaintiffs observe that this provision
mirrors the federal information-sharing provisions in 8 U.S.C. § 1373 but
imposes harsher penalties. Section 1373, however, does not comprise any
comprehensive regulatory framework with which SB4 could conflict. As noted
above, the Tenth Amendment would likely preclude Congress from enforcing
Section 1373 with the penalties provided by SB4. Moreover, the Arizona Court
emphasized that Congress “has encouraged the sharing of information about
12 The plaintiffs also rely on the fact that the Supreme Court merely held that
Arizona’s status-inquiry provision was not susceptible to a facial challenge. But, of course,
this case also involves a facial challenge.
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possible immigration violations.” Arizona, 567 U.S. at 412. In light of Arizona,
neither the status-inquiry nor the information-sharing provisions of SB4 are
conflict preempted. 13
II. The “Endorse” Prohibition
Section 752.053(a)(1) provides that a “local entity or campus police
department” may not “endorse a policy under which the entity or department
prohibits or materially limits the enforcement of immigration laws.” See Tex.
Gov’t Code § 752.053(a)(1) (emphasis added). The term “local entity” includes
not only governmental bodies like city councils and police departments, but
also a series of elected officials and “officer[s] or employee[s]” of the listed
bodies. See id. § 752.051(5)(A)-(C). The district court concluded that the term
“endorse” (1) was overbroad, (2) constituted viewpoint discrimination, and
(3) was unconstitutionally vague. To the extent that “endorse” prohibits core
political speech by elected officials, it is not “readily susceptible” to a limiting
construction that avoids constitutional concerns. Accordingly, on different
reasoning from that employed by the district court, we apply the principle of
severability and reject the application of the “endorse” provision to elected
officials covered by Section 752.053(a)(1).
We must begin by construing the state statute. United States v.
Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838 (2008) (“[I]t is impossible to
determine whether a statute reaches too far without first knowing what the
statute covers.”). Texas urges this court to adopt a narrowing construction that
13 The plaintiffs also challenge subsections (a)(1) and (a)(2), which broadly forbid any
“policy” or “pattern or practice” that “prohibits or materially limits the enforcement of
immigration laws.” They argue that these subsections may authorize conduct that is
impermissible under the federal savings clause, 8 U.S.C. § 1357(g)(10)(B), even if subsections
(b)(1)-(3) do not. We decline to infer a conflict based solely on speculation. See Arizona,
567 U.S. at 415, 132 S. Ct. at 2510.
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interprets “endorse” to mean “sanction” and limits the verb’s scope to official
speech.
Federal courts must accept a reasonable narrowing construction of a
state law to preserve its constitutionality. See Voting for Am., Inc., v. Steen,
732 F.3d 382, 396 (5th Cir. 2013). However, a court has no authority to
“‘rewrite a . . . law to conform it to constitutional requirements,’ for doing so
would constitute a ‘serious invasion of the legislative domain.’” United States
v. Stevens, 559 U.S. 460, 481, 130 S. Ct. 1577, 1592 (2010) (citations omitted).
A statute must be “readily susceptible” to a construction for a court to adopt it.
Id.; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 216-17,
95 S. Ct. 2268, 2276 (1975) (refusing to adopt a limiting construction because
“the ordinance by its plain terms [was] not easily susceptible of” one).
The verb “endorse” literally means “to write on the back of (a
document),” 14 but there is no question that the figurative meaning of the verb
includes the broad significance the district court ascribed to it. 15 As shown by
the district court’s survey of dictionary definitions, the most common meaning
of “endorse” encompasses “a recommendation, suggestion, comment, or other
expression in support of or in favor of an idea or viewpoint that is generally
conveyed openly or publicly.” Texas is also correct, however, that the verb
“sanction” is a common definition for “endorse.” 16 And the verb “sanction”
14 See The Oxford English Dictionary (online ed. 2017), available at
http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid.
15 See The American Heritage Dictionary of the English Language (online ed. 2017)
(defining “endorse” as “[t]o express approval of . . . especially by public statement”), available
at https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College
Dictionary (online ed. 2017) (offering “to give approval to; support” as possible definitions of
endorse), available at http://www.yourdictionary.com/endorse.
16See The Oxford English Dictionary (online ed. 2017) (defining the figurative sense
of “endorse” as “[t]o confirm, sanction”), available at
http://www.oed.com/view/Entry/61987?rskey=smXJfK&result=2&isAdvanced=false#eid;
20
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denotes the use of official authority to ratify or authorize. 17 The question here
is not just whether “endorse” is susceptible to the meaning that Texas
proposes, but whether it is reasonable to limit the word accordingly.
For several reasons, we do not find the “endorse” prohibition readily
susceptible to this limitation. First, the noscitur a sociis canon does not
support the state’s argument. This canon explains that, “[w]hen several nouns
or verbs or adjectives or adverbs—any words—are associated in a context
suggesting that the words have something in common, they should be assigned
a permissible meaning that makes them similar.” See Antonin Scalia & Bryan
Garner, Reading Law: The Interpretation of Legal Texts 195 (2012). This
canon does not imbue words with unnatural meaning, but serves “rather to
limit a general term to a subset of all the things or actions that it covers.” See
id. at 196. For instance, in United States v. Williams, the Supreme Court relied
on this canon to find that a statute only penalized “speech that accompanies or
seeks to induce a transfer of child pornography.” 553 U.S. 285, 294,
128 S. Ct. 1830, 1839 (2008). In Williams, the relevant list of verbs was
“advertises, promotes, presents, distributes, or solicits.” Id. The Court
recognized that the verbs “promotes” and “presents” were “susceptible of
multiple and wide-ranging meanings,” which would, like a broad construction
of “endorse,” cover much protected speech. Id. To avoid the First Amendment
The American Heritage Dictionary of the English Language (online ed. 2017) (listing
“sanction” as a secondary meaning of “endorse”), available at
https://ahdictionary.com/word/search.html?q=endorse; Webster’s New World College
Dictionary (online ed. 2017) (same), available at http://www.yourdictionary.com/endorse.
17 See The American Heritage Dictionary (online ed. 2017) (defining “sanction” as “[t]o
give official authorization or approval to”), available at
https://ahdictionary.com/word/search.html?q=sanction; The Oxford English Dictionary
(online ed. 2017) (defining “sanction” as “[t]o ratify or confirm by sanction or solemn
enactment; to invest with legal or sovereign authority; to make valid or binding”), available
at
http://www.oed.com/view/Entry/170491?rskey=VpyOmv&result=2&isAdvanced=false#eid.
21
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problem, the Court used noscitur a sociis to narrow “promotes” and “presents”
to their “transactional connotation.” Id.
Using noscitur a sociis here to limit “endorse” to the meaning it shares
with “adopt” and “enforce” renders “endorse” either superfluous or
meaningless. To the extent that all three verbs connote the exercise of
government authority to develop and administer policy, “endorse” (as
interpreted by the state to mean “officially sanction”) adds nothing of substance
to the prohibitions against an entity’s actually “adopting” or “enforcing”
policies at odds with SB4. Without putting action behind his “sanction,” an
official who merely “endorses” impermissible policies has not “adopted” or
“enforced” them, no matter the amount of speech he has devoted to that end.
The official’s “sanction” is toothless. Alternatively, if an official’s “sanction” is
functionally equivalent to “adopting” or “enforcing” impermissible policies, the
word becomes wholly redundant. There is no generic context, like the
“transactional context” noted in Williams, in which “endorse,” read to mean
“sanction,” conveys additional meaning to this provision.
Second, that the clause following “endorse” prohibits the endorsement of
“a policy under which the entity or department limits the enforcement of
immigration laws” does not support the state’s narrow interpretation of
“endorse.” See Tex. Gov’t Code § 752.053(a)(1) (emphasis added). Granted,
under this qualifying phrase, SB4 does not regulate any statements approving
hypothetical policies or the policies of any other entity of government. But as
we have explained, the “endorsement” as “sanction” of policies contrary to SB4,
without accompanying action to “adopt” or “enforce” such policies, is “mere”
core political speech. This provision’s qualifying language accentuates the
overlap between “official” and “individual” speech that the state erroneously
attempts to deny. As the plaintiffs point out, under the state’s rationale, a local
22
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sheriff may violate SB4 by answering questions at a local town hall meeting or
press conference or testifying to a legislative committee. 18
In sum, we are unpersuaded that, taken in context, “endorse” “readily”
bears the restrictive meaning urged by the state. As written, SB4 proscribes
core political speech when such “endorsement” is uttered by elected officials.
The state cannot regulate the substance of elected officials’ speech under the
First Amendment without passing the strict scrutiny test. See Williams-Yulee
v. The Fla. Bar, 135 S. Ct. 1656, 1665-66 (2015). The state concedes that if
“endorse” bears its most common and natural meaning, this provision does not
pass constitutional muster as applied to elected officials. In light of the
infringement of this provision on elected officials’ core political speech, the
state’s concession necessarily applies to the elements required for injunctive
relief. See, e.g., Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976)
(“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”); Opulent Life Church v. City
of Holly Springs, 697 F.3d 279, 295-97 (5th Cir. 2012).
This conclusion does not, however, insulate non-elected officials and
employees, who may well be obliged to follow the dictates of SB4 as
“government speech.” See Garcetti v. Ceballos, 547 U.S. 410, 421,
126 S. Ct. 1951, 1960 (2006) (“We hold that when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate
18 The plaintiffs are incorrect that related provisions of SB4 bear on the First
Amendment argument. Exemptions from SB4 when an officer works off-duty for an exempt
entity like a charter school, see, e.g., Tex. Gov’t Code § 752.052, simply determine whether
SB4 applies at all, not what speech it covers. Nor is it significant that “a statement by
[a] public officer” may constitute evidence that an entity has violated SB4. See id.
§ 752.0565(b). It is unremarkable that “statements” could be probative of a local entity’s
policy or pattern or practice of limiting immigration enforcement.
23
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their communications from employer discipline”). In the context of government
speech, a state may endorse a specific viewpoint and require government
agents to do the same. See, e.g., Walker v. Tex. Div., Sons of Confederate
Veterans, Inc., 135 S. Ct. 2239, 2253 (2015) (rejecting viewpoint discrimination
claim after finding that the specialty license plates at issue constituted
government speech).
Such issues are not properly before us because the appellees do not
represent the public employees putatively covered by Garcetti and the
government speech doctrine. The Supreme Court has directed that “the
lawfulness of the particular application of the law should ordinarily be decided
first” before mounting “gratuitous wholesale attacks” under the overbreadth
doctrine. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485,
109 S. Ct. 3028, 3037 (1989). Accordingly, we “resist the pulls to decide the
constitutional issues involved in this case on a broader basis than the record
before us imperatively requires.” Serafine v. Branaman, 810 F.3d 354, 363
(5th Cir. 2016) (quoting Street v. New York, 394 U.S. 576, 581, 89 S. Ct. 1354,
1360 (1969)).
Consistently with but more narrowly than the district court, we affirm
the district court’s injunction against enforcement of Section 752.053(a)(1) only
as it prohibits elected officials from “endors[ing] a policy under which the entity
or department prohibits or materially limits the enforcement of immigration
laws.”
III. The ICE-Detainer Mandate
Article 2.251(a) provides that law enforcement agencies “that ha[ve]
custody of a person subject to an immigration detainer request . . . shall:
(1) comply with, honor, and fulfill any request made in the detainer request . . .
and (2) inform the person that the person is being held pursuant to” that
request. Tex. Code Crim. Proc. art. 2.251(a)(1)-(2). Law enforcement agencies
24
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are exempt from the duty imposed by subsection (a) when the individual in
custody “has provided proof that the person is a citizen of the United States or
that the person has lawful immigration status in the United States, such as a
Texas driver’s license or similar government-issued identification.” Id.
art. 2.251(b). The district court held that the ICE-detainer mandate violates
the Fourth Amendment because it is not reasonable for local officials to detain
persons based on probable cause of removability.
Before reviewing the merits of this issue, we are obliged to address the
threshold question whether the plaintiffs have standing to challenge the ICE-
detainer mandate. Standing in federal court requires that the plaintiffs
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136 (1992)).
The plaintiffs contend that they satisfy these requirements because the ICE-
detainer mandate would force plaintiff local government officials to choose
between violating their oaths of office to defend the U.S. Constitution and
facing criminal penalties and expulsion from office. We agree. There is no
question that the second and third prongs of the standing analysis are met.
The injury claimed by the plaintiffs stems directly from Texas’s enactment of
the ICE-detainer mandate. Judicial invalidation of the mandate would obviate
the plaintiffs’ concerns. Accordingly, we need assess only whether the
plaintiffs have alleged a sufficient injury.
In Board of Education v. Allen, the Supreme Court concluded that school
board officials had standing to challenge a state statute requiring school
districts to purchase and loan textbooks to students enrolled in parochial
schools. 392 U.S. 236, 241 n.5, 88 S. Ct. 1923, 1925 (1968). The Court
explained, “[b]elieving [state law] to be unconstitutional, [the plaintiffs] are in
25
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the position of having to choose between violating their oath and taking a
step—refusal to comply with [state law]—that would be likely to bring their
expulsion from office and also a reduction in state funds for their school
districts.” Id. This court’s decisions applying Allen have explained that it is
not enough for public officials to assert as an “injury” the violation of their
oaths of office where no adverse consequences would occur. See, e.g., Finch v.
Miss. State Med. Ass’n, 585 F.2d 765, 774-75 (5th Cir. 1978) (observing that
the plaintiff Governor was “certainly in no danger of expulsion [from office] at
the hands of the defendant professional associations” and that “there is no
allegation that his office is in any danger of a loss of funds . . . if the Governor
refuses to comply with the statute”); Donelon v. La. Div. of Admin. Law,
522 F.3d 564, 567 (5th Cir. 2008) (denying standing for Louisiana
Commissioner of Insurance); Crane v. Johnson, 783 F.3d 244, 253 (5th Cir.
2015) (“Under the Fifth Circuit precedent, [ICE agents’] violation of [ ] oath
alone is an insufficient injury to support standing.”).
In this case, plaintiff government officials have a claim to standing
analogous to the school board members in Allen. The plaintiff government
officials face criminal penalties in addition to civil fines and expulsion from
office if they disobey the ICE-detainer mandate. And if they comply with the
allegedly unconstitutional mandate, the violation of their oaths is not the only
putative injury; any ICE-detainer mandate enforcement actions that
knowingly violate detainees’ Fourth Amendment rights could expose the
plaintiffs to damage suits. 19 The plaintiff government officials have a sufficient
19 It is true that SB4 provides the possibility of indemnification for certain civil
lawsuits arising from good-faith compliance with the ICE-detainer mandate. See Tex. Gov’t
Code § 402.0241. But this possibility is cold comfort for the plaintiffs when the statute leaves
it to Texas to determine whether an entity has engaged in “good-faith compliance”
warranting indemnification. See id. § 402.0241(b)(2).
26
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“personal stake” to press their claim based on alleged violation of their oaths
and potentially severe personal consequences, and we may proceed to the
merits. See Donelon, 522 F.3d at 568.
The Fourth Amendment protects individuals “against unreasonable
searches and seizures.” U.S. Const. amend. IV. 20 A constitutional seizure of a
criminal defendant must generally be supported by probable cause.
Nevertheless, this case does not involve whether probable cause existed in a
particular instance: it is a pre-enforcement facial challenge. Such a challenge
is “the most difficult . . . to mount successfully.” United States v. Salerno,
481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987). Bringing a facial challenge, it
is not enough for the plaintiffs to demonstrate that the ICE-detainer mandate
will often cause Fourth Amendment violations. They must establish that the
mandate “is unconstitutional in all of its applications.” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008).
The plaintiffs suggest that the Supreme Court’s recent decision in City
of Los Angeles v. Patel, has lowered the bar for facial Fourth Amendment
challenges, but they misconstrue the case. 135 S. Ct. 2443 (2015). Patel
rejected the contention that facial Fourth Amendment challenges are
“categorically barred or especially disfavored.” Id. at 2449. The Court did not
overrule the Salerno standard but merely clarified that, under the
unconstitutional-in-all-of-its-applications analysis, a court must “consider[]
20 We pretermit the question whether the Fourth Amendment even applies to many
aliens subject to ICE-detainer requests. See Castro v. Cabrera, 742 F.3d 595, 600 (5th Cir.
2014) (holding that the “entry fiction” applies to preclude illegal aliens’ Fourth Amendment
detention claims); United States v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (noting
that the Supreme Court has never “held that the Fourth Amendment extends to a native and
citizen of another nation who entered and remained in the United States illegally”); but see
Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624-25 (5th Cir. 2006) (holding that an alien with
substantial connections to the United States “may bring a Bivens claim for unlawful arrest
and the excessive use of force under the Fourth Amendment”).
27
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only applications of the [challenged] statute in which it actually authorizes or
prohibits conduct.” Id. at 2451 (emphasis added). In other words, a facial
challenge does not fail merely because exigent circumstances or a warrant
could independently justify some applications of the challenged statute. Id.
Thus, the plaintiffs must establish that every seizure authorized by the ICE-
detainer mandate violates the Fourth Amendment. They have not satisfied
this exacting standard.
It is undisputed that federal immigration officers may seize aliens based
on an administrative warrant attesting to probable cause of removability. Abel
v. United States, 362 U.S. 217, 233-34, 80 S. Ct. 683, 694 (1960). It is also
evident that current ICE policy requires the Form I-247A to be accompanied
by one of two such administrative warrants. On the form, an ICE officer
certifies that probable cause of removability exists. Thus, an ICE-detainer
request evidences probable cause of removability in every instance. 21
Under the collective-knowledge doctrine, moreover, the ICE officer’s
knowledge may be imputed to local officials even when those officials are
unaware of the specific facts that establish probable cause of removability. See
United States v. Zuniga, 860 F.3d 276, 283 (5th Cir. 2017) (“Under the
collective knowledge doctrine, an officer initiating the stop or conducting the
search need not have personal knowledge of the evidence that gave rise to the
reasonable suspicion or probable cause, so long as he is acting at the request
of those who have the necessary information.”). Compliance with an ICE
detainer thus constitutes a paradigmatic instance of the collective-knowledge
21The plaintiffs’ suggestion that “an ICE agent may indicate simply that DHS intends
to assume custody of the detainee to ‘make an admissibility determination’” misrepresents
Form I-247A. The box they mention applies only when DHS has transferred an alien to the
local authority’s custody for a proceeding or investigation and thus “intends to resume
custody of the alien to complete processing and/or make an admissibility determination.” See
ICE Form I-247A, available at https://perma.cc/RH4C-5D8Q.
28
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doctrine, where the detainer request itself provides the required
“communication between the arresting officer and an officer who has
knowledge of all the necessary facts.” United States v. Ibarra, 493 F.3d 526,
530 (5th Cir. 2007).
Nevertheless, the plaintiffs make several arguments why this
cooperation constitutes a per se violation of the Fourth Amendment. First, they
defend the district court’s holding that state and local officers may only arrest
individuals if there is probable cause of criminality. The district court erred.
Courts have upheld many statutes that allow seizures absent probable cause
that a crime has been committed. See Cantrell v. City of Murphy, 666 F.3d 911,
923 (5th Cir. 2012) (state statute authorizing seizure of mentally ill); Maag v.
Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (state statute authorizing seizure
of those seriously ill and in danger of hurting themselves); Commonwealth v.
O’Connor, 546 N.E.2d 336, 341 (Mass. 1989) (state statute authorizing seizure
of incapacitated persons); In re Marrhonda G., 613 N.E.2d 568, 569 (N.Y. 1993)
(state statute authorizing seizure of juvenile runaways). The district court’s
contention is also patently at odds with immigration law and procedure; civil
removal proceedings necessarily contemplate detention absent proof of
criminality. See, e.g, Demore v. Kim, 538 U.S. 510, 531, 123 S. Ct. 1708, 1721-
22 (2003) (upholding no-bail civil immigration detention under a Fifth
Amendment Due Process challenge). 22
The plaintiffs also argue that there is no state law authorizing local
officers to conduct seizures based on probable cause of removability. They cite
Lunn v. Commonwealth, in which the Supreme Judicial Court of
22For these reasons, we also disavow any district court decisions that have suggested
the Fourth Amendment requires probable cause of criminality in the immigration context.
See Mercado v. Dallas Cty., 229 F. Supp. 3d 501, 512-13 (N.D. Tex. 2017); Santoyo v. United
States, No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017).
29
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Massachusetts held that state officers had no state-law authority to carry out
detention requests made in civil immigration detainers. 78 N.E.3d 1143, 1158-
60 (Mass. 2017). Lunn is easily distinguishable. Here the ICE-detainer
mandate itself authorizes and requires state officers to carry out federal
detention requests.
The plaintiffs next contend that the Fourth Amendment requirement is
not satisfied when officers must unthinkingly accept an agency’s conclusions
without taking into account facts tending to dissipate probable cause.
Subsection (b) of article 2.251 allegedly fails to cure this defect because it forces
local officers to make removal-status determinations, running afoul of Arizona
and Farmers Branch. This argument proves too much. Implicitly, the
plaintiffs’ argument would invalidate any compliance with ICE detainers:
officers must make their own removal-status determinations to satisfy the
Fourth Amendment but officers cannot make such determinations under
Arizona and Farmers Branch.
The plaintiffs’ argument misconstrues the relevant precedents. Neither
Arizona nor Farmers Branch undermines subsection (b). Arizona denied state
officers the power to unilaterally make removability determinations because
“[a] decision on removability requires a determination whether it is
appropriate to allow a foreign national to continue living in the United States”
and such decisions “touch on foreign relations and must be made with one
voice.” Arizona, 567 U.S. at 409, 132 S. Ct. at 2506-07. Likewise, Farmers
Branch invalidated an ordinance requiring building inspectors to conduct their
own “unlawful presence” inquiries. 726 F.3d at 532. Both cases involved
unilateral status-determinations absent federal direction. But subsection (b)
operates only when there is already federal direction—namely, an ICE-
detainer request—and the subsection merely limits the scope of the officer’s
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duty to comply with that request. It remains the ICE agent who makes the
underlying removability determination. 23
The plaintiffs are also wrong to suggest that the ICE-detainer mandate
requires officers to ignore facts that negate probable cause. Subsection (b)
should cover the majority of cases where facts negate probable cause: indeed,
it is difficult to imagine what facts other than valid forms of identification
would conclusively negate ICE’s probable cause determination. 24 Assuming
arguendo that there could be such facts, Texas and the United States as amicus
dispute that local officers would be required to ignore them. They argue that
the verbs “[c]omply with, honor, and fulfill” require cooperation—not blind
obedience. This seems reasonable given the assumption that ICE should have
no interest in detaining aliens when local officials communicate that the
original determination was flawed. Nevertheless, even if the mandate could
hypothetically cause a violation, this possibility is not enough to substantiate
a facial challenge.
Likewise, none of the cases the plaintiffs cite indicates that the detainer
mandate is facially invalid. In Santos v. Frederick County Board of
Commissioners, the Fourth Circuit held that, “absent express direction or
authorization by federal statute or federal officials, state and local law
enforcement officers may not detain or arrest an individual solely based on
known or suspected civil violations of federal immigration law.” 725 F.3d 451,
23 Because we refuse to interpret subsection (b) as authorizing unilateral removability
determinations, we also reject the plaintiffs’ argument that the ICE-detainer mandate is
conflict preempted. In doing so, we note that Section 1357(g)(10)(B) expressly mentions
cooperation in “identification” and “detention.”
24 It is important to remember that an adult alien commits a federal crime if he fails
to “at all times carry with him and have in his personal possession any certificate of alien
registration or alien registration receipt card” evidencing his lawful status. 8 U.S.C.
§ 1304(e).
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465 (4th Cir. 2013). Thus, the seizure in Santos violated the Fourth
Amendment because the officers detained Santos “before dispatch confirmed
with ICE that the warrant was active.” Id. at 466. Similarly, in Melendres v.
Arpaio, the Ninth Circuit rejected unilateral detention “based solely on
reasonable suspicion or knowledge that a person was unlawfully present in the
United States.” 695 F.3d 990, 1000 (9th Cir. 2012). As in Santos, there was
no federal request for assistance before the seizure. Id. Therefore, these
decisions do not affect the ICE-detainer mandate, which always requires a
predicate federal request before local officers may detain aliens for the
additional 48 hours. The validity of this sort of compliance has been affirmed
by at least one circuit. See United States v. Ovando-Garzo, 752 F.3d 1161, 1164
(8th Cir. 2014) (finding the claim that a state officer could not detain an alien
on behalf of federal officers “meritless”).
Last, the plaintiffs argue that the mandate is facially invalid because it
does not expressly require a probable cause determination. ICE policy may
change, the plaintiffs argue. If that happens, compliance with subsequent
detainer requests may violate the Fourth Amendment. In our view, this
argument—that ICE policy may change—confirms that facial relief is
inappropriate. It is true that ICE might change its policy such that compliance
with ICE’s requests would violate the Fourth Amendment. It is also true that,
under the current scheme, seizures may occur where probable cause was
lacking. But this is no basis for facial relief under Salerno and Patel. If ICE
policy changes or if violations occur, the proper mechanism is an as-applied,
not a facial challenge.
IV. “Materially Limits”
Section 752.053(a)(1)-(2) forbids any “policy” or “pattern or practice” that
“prohibits or materially limits” the enforcement of the immigration laws. See
Tex. Gov’t Code § 752.053(a)(1)-(2). The plaintiffs contend that the phrase
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“materially limits” is unconstitutionally vague on its face. A statutory
provision is facially vague when it is plagued with such “hopeless
indeterminacy” that it precludes “fair notice of the conduct it punishes.”
Johnson v. United States, 135 S. Ct. 2551, 2556-58 (2015). A facially vague
provision is “so standardless that it invites arbitrary enforcement.”
See id. at 2556; Coates v. City of Cincinnati, 402 U.S. 611, 616, 91 S. Ct. 1686,
1689 (1971) (finding an ordinance facially vague because it proscribed
“annoying” conduct). The plaintiffs have not established that “materially
limits” is facially vague under this exacting standard.
Although the plaintiffs argue that context exacerbates the vagueness of
“materially limits,” the opposite is true. The status-inquiry, information-
sharing, and assistance-cooperation provisions of Section 752.053(b)(1)-(3)
provide specific examples of what conduct local entities cannot limit. Thus, if
a policy expressly limits one of these activities, then the question for a court is
whether such a limitation is “material.” The inclusion of this qualifier makes
the challenged phrase more definite, not less, and materiality standards are
routine in the law. See, e.g., Fed. R. Evid. 807(a)(2). Materiality is a familiar
component of fraud claims, and the full phrase “materially limit” appears in
federal securities law, 15 U.S.C. § 77d-1(b)(1)(H)(i), and in the ABA model rules
of professional conduct. Model R. of Prof’l. Conduct 1.7(a)(2), 1.10(a)(1).
Materiality is not a vague concept, especially to actors subject to these
provisions who are law enforcement or government officers.
The plaintiffs contend that Texas cannot specify any applications of the
“materially limits” provision that are not flat prohibitions—and thus already
covered by the word “prohibits.” We disagree. Texas identifies the Maverick
County Sheriff’s Office policy of refusing to “participate or cooperate in the
arrests of individuals for civil immigration violations.” This policy does not
actually flatly prohibit cooperation; it limits the circumstances in which
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cooperation is permissible: criminal but not civil violations. Texas also cites El
Cenizo’s Mayor, who contended that the city’s policy “limits the situations in
which [city] . . . officials engage in immigration enforcement or collect and
disseminate such information.” This, too, seems like a policy best
characterized as limiting and not prohibiting the enforcement of immigration
laws. Almost any limitation could be recharacterized as a partial prohibition.
That is likely why SB4 includes both terms. Otherwise, supporters of the
policies just described could argue that their policies limited but did not
actually prohibit immigration enforcement. Thus, the putative redundancy
between “prohibits” and “materially limits” likely reflects “a sense of belt-and-
suspenders caution” on the part of the legislature. King v. Burwell,
135 S. Ct. 2480, 2498 (2015) (Scalia, J., dissenting). It is no reason to facially
invalidate the phrase.
Texas also proposes several narrowing constructions. First, Texas
suggests that a material limit must concern “the enforcement of immigration
laws” and so policies relating to “general matters like overtime and patrolling
locations” would not be covered. Under this limitation, Texas argues, SB4 will
“not prohibit immigration-neutral local policies regarding bona fide resource
allocation.” Second, Texas states that a “policy cannot ‘materially limit’
immigration-law enforcement if it prohibits actions that the locality already
lacks the power to lawfully perform.”
These limitations are reasonable. But the nature of the plaintiffs’
lawsuit—a facial, pre-enforcement challenge—makes us unwilling to adopt
limiting constructions that are not strictly necessary to preserve the
constitutionality of a statute. In general, as-applied challenges brought in
post-enforcement proceedings are “the basic building blocks of constitutional
adjudication.” See Gonzales v. Carhart, 550 U.S. 124, 168, 127 S. Ct. 1610,
1639 (2007) (citations omitted). Here, it is helpful to consider the many years
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and judicial decisions leading to the Supreme Court’s invalidation of the
residual clause in Johnson: “Nine years’ experience trying to derive meaning
from the residual clause convinces us that we have embarked upon a failed
enterprise.” Johnson, 135 S. Ct. at 2560. In contrast to the extreme
circumstances in Johnson, the posture of this case calls for judicial restraint.
See, e.g., Wash. State Grange, 552 U.S. at 450-51, 128 S. Ct. at 1191
(recognizing that pre-enforcement facial challenges are “disfavored” because
they “often rest on speculation” and “threaten to short circuit the democratic
process by preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution”). For these
reasons, we conclude that the “materially limits” phrase is not facially void for
vagueness.
V. Commandeering Challenge
The plaintiffs raise an argument on appeal that was not presented to
the district court. They begin by pointing out that the Tenth Amendment
prevents the Federal Government from forcing local governments to enforce
federal immigration laws. Then they state that the preemption doctrine
prevents Texas from passing direct immigration-enforcement regulation.
From these premises, the plaintiffs argue that, under the Texas Constitution,
the state cannot preempt cities’ home-rule authority without passing the sort
of direct immigration regulation that would be preempted by federal law.
This argument is waived because it was not adequately raised below.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005). Even if
it were not waived, this argument merely recasts a state-law home-rule-city
argument as a hybrid Tenth Amendment and preemption claim. The plaintiffs’
briefing indicates that this argument stems from questions asked during oral
argument on Texas’s motion to stay. The flaw in the argument is that Texas
law is clear: “The Texas Constitution prohibits a city from acting in a manner
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inconsistent with the general laws of the state. Thus, the legislature may, by
general law, withdraw a particular subject from a home rule city’s domain.”
Tyra v. City of Houston, 822 S.W.2d 626, 628 (Tex. 1991) (citations omitted).
For better or for worse, Texas can “commandeer” its municipalities in this way.
CONCLUSION
The plaintiffs have not made a showing that they are likely to succeed
on the merits of any of their constitutional claims except as to the enforcement
of Tex. Gov’t Code § 752.053(a)(1)’s “endorse” provision against elected
officials. The foregoing discussion demonstrates there is no merit in their
remaining arguments, and none of the other challenged provisions of SB4
facially violate the Constitution. Accordingly, we AFFIRM in part the district
court’s preliminary injunction, VACATE in large part and remand with
instructions to DISMISS the vacated injunction provisions.
36