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Attorneys for the state of Texas are set to head back before the U.S. 5th Circuit Court of Appeals in New Orleans on Tuesday to defend the state’s new immigration enforcement law, Senate Bill 4, against charges that the measure is discriminatory and violates the U.S. Constitution.But the Texas attorney general’s office enters the courtroom with some wind at its back after a three-judge panel of the court allowed parts of the controversial law to go into effect in late September.

Gov. Greg Abbott signed SB 4 into law in May, but several local governments, including the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties, filed suit to block the measure from going into effect.

As passed, SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration "detainers" — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000.

U.S. District Judge Orlando Garcia in late August halted several parts of the bill, including the provision that requires jail officials to honor all detainers. He also blocked other sections that prohibit local entities from pursuing “a pattern or practice that 'materially limits' the enforcement of immigration laws” and another that prohibits “assisting or cooperating” with federal immigration officers as reasonable or necessary. He did not block the part of the bill that says police chiefs, sheriffs and other department heads cannot forbid officers from questioning a person’s immigration status.

The state of Texas countered after Garcia’s ruling and asked a three-judge panel of the 5th Circuit to lift Garcia’s ruling while the case played out. The panel ruled the detainer provision could stand but the part that requires local jails to “comply with, honor and fulfill” detainers does not require detention based on every detainer issued. The panel also determined that law enforcement officers, including campus police, with “authority that may impact immigration” cannot be prevented from assisting federal immigration officers. 

Attorneys will argue on Tuesday on whether Garcia’s initial injunction should be in effect until he rules on the substance of SB 4 in its entirety.

Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, which is representing several of the plaintiffs in the lawsuit, said among the issues is whether SB 4 violates the First Amendment.

Opponents say the law's language prohibits law enforcement officers from speaking out against SB 4 or crafting policies that don’t focus on immigration enforcement. They also claim the law violates the Supremacy Clause of the U.S. Constitution, which states that immigration laws are a federal — not a state — responsibility.

Perales said issues related to the Fourth Amendment — prohibiting illegal search and seizure — could also arise because the previous panel allowed the bulk of the detainer provision to stand. At issue, she said, is “whether SB 4’s mandatory detainer provision could force counties — primarily [the government entities] with jails — to violate a person’s Fourth Amendment rights.”

During a conference call with reporters last week, MALDEF president and general counsel Thomas Saenz said there’s no way to predict when a ruling will be made after Tuesday’s arguments.

“They can take as long as they would like. In the meantime, Judge Garcia’s injunction, as modified by the [three-judge panel’s ruling], will remain the law until this panel makes its decision,” he said.

But the 5th Circuit’s eventual ruling might not be the last word, Saenz added, because either side could petition the U.S. Supreme Court to make the final determination on whether Texas can craft its own immigration-enforcement provisions and how far-reaching they can be.

A spokesperson in Texas Attorney General Ken Paxton’s office did not respond to an email seeking comment about Tuesday’s proceedings.

Tuesday’s debate will be the latest in what’s been a year-long battle over the legislation. Filed in November 2016 and deemed an “emergency item” by Abbott, the legislation was the subject of marathon public testimony in Senate and House committee hearings, where witnesses were overwhelmingly against the measure. 

After the bill was signed, protesters took to the State Capitol on the last day of the regular legislative session and disrupted proceedings in the House to the extent that the lower chamber was forced to recess until the Department of Public Safety cleared the gallery.

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