Texas House Bill 17 Is Unconstitutional

Representative Debbie Riddle's (of terror babies fame) bill creating the offense of criminal trespass for illegal aliens likely violates the Constitution and I predict will quickly be enjoined if passed by the 82nd legislature. You could almost hear the little wheels and gears turning. Criminal trespass based upon a violation of federal immigration law. That could work; or not.

A few problems, constitutional and otherwise. First the legalities. House Bill 17 criminalizes a non-citizen's presence in Texas if there is an initial unlawful entry as defined by federal immigration law, specifically 8 U.S.C. Section 1325 or 1326. Sounds reasonable, eh? Simply state enforcement of federal immigration law. Not quite. The gist of the newly created crime is the non-citizen's presence in Texas despite the fact that Congress takes a contrary position. Entry without inspection and entry after deportation are federal crimes but so far Congress has avoided making it a crime for mere presence absent other factors. Riddle's bill violates the preemption doctrine-a fundamental principle of the Constitution that Congress has the power through the Supremacy Clause to preempt state law.

Criminal trespass may sound appealing to Texans but immigration presents an issue national in scope often with multiple and competing objectives. Although a state may adopt regulations that have an indirect or incidental effect on non-citizens a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law.

Arizona attempted the same kind of mischief with its anti-immigration measures resulting in an immediate federal injunction. From the tenor of the appellate argument in the Arizona case, the creation of a state crime that supplants federal immigration law by criminalizing unlawful presence doesn't stand the proverbial snowball's chance.

HB 17's amendment to the Code of Criminal Procedure, authorizing a warrantless arrest for criminal trespass, too, looks shaky.  Under Riddle's bill, if you get stopped for a traffic offense the police officer gets to monkey around with the idea that, perhaps there's reasonable suspicion to believe that you're committing criminal trespass of the State of Texas. Physical appearance of the person stopped then plays a role in the process. Anyone who looks like they're from south of the border is fair game.

How long can you detain someone under the bill to figure out their immigration status? In the Arizona case, the state's attorney told a panel of the Ninth Circuit Court of Appeals that ICE would respond in 11 minutes. (presumably through ICE's Law Enforcement Support Center). That might be correct where illegal reentry is concerned (a violation of 8 U.S.C. Section 1326) but for those alleged to have entered without inspection (a violation of 8 U.S.C. Section 1325) no such records exist-illegal entry is the issue to be determined and the 11 minute figure goes out the window. The officer then gets the opportunity to hone his interrogation skills.

A relevant question to ask is whether a check to determine immigration status presupposes a trip to the police station to check fingerprints. Under the Secure Communities program, ICE currently checks the immigration status of persons arrested at some Texas county jails utilizing fingerprint checks. Can you haul folks to the police station without an arrest to determine their immigration status? For a class B misdemeanor, probably not under Hayes v. Florida, 470 U.S. 811 (1985).

No good can come from the bill's (nor other Arizona style legislation) passage. Aside from the constitutional difficulties posed by the creation of a state crime for an immigration violation, consider the ill will engendered by such legislation. Arizona already set the stage for such hard feelings. To what end? It's almost a certainty the federal courts will enjoin such legislation on preemption grounds. Why then alienate the fastest growing segment of the population in this state who are ultimately destined to comprise a good share of the voting public.  Prudence suggests pragmatic thinking and cooperation to fix a complicated immigration problem instead of thumb-in-the-eye treatment.