Can Texas stop local governments from adopting policies that block cooperation with federal immigration enforcement?

TX AG Opinion GA-0699: Can Texas override local policies that limit immigration cooperation?

Plain-English summary

A state representative asked whether the Texas Legislature has authority to deter local governments from adopting, or to invalidate existing, policies that would hinder enforcement of federal immigration laws, including policies that prevent local citizens, officials, or law enforcement from cooperating with the federal government about a person's immigration status. The core issue was whether such local policies are preempted by federal law.

The Attorney General began with settled federal supremacy. The power to regulate immigration is exclusively a federal power, and through the Supremacy Clause the U.S. Constitution bars state and local governments from actions that frustrate federal immigration laws and regulatory schemes. Two federal statutes are directly on point. Title 8, section 1373 provides that, notwithstanding any other law, no government entity or official may prohibit or restrict any entity or official from sending to or receiving from the immigration authorities information about a person's citizenship or immigration status. Title 8, section 1644 similarly bars prohibiting or restricting a state or local entity from sending or receiving such information. The conference report explained these provisions were designed to prevent any state or local law, ordinance, executive order, or policy that restricts communication with the immigration authorities, fostering state and local cooperation in enforcing immigration law.

Applying the three preemption tests from De Canas v. Bica, the opinion focused on the third, whether a local measure stands as an obstacle to Congress's purposes or makes compliance with both laws impossible. A local policy that prohibits or restricts officials and employees from sharing immigration information with federal authorities likely conflicts with sections 1373 and 1644 and is therefore a nullity. A policy that prevents cooperation by means other than restricting information-sharing may also fail the third test as an obstacle to federal objectives. The opinion noted narrow exceptions, such as limited circumstances where immigration status is confidential, and entities with their own affirmative federal reporting duties.

Because such policies are likely void, the opinion turned to whether the Legislature may act. Without reviewing any specific proposed bill (it cited Oklahoma's law authorizing a mandamus action to compel cooperation as an example), the opinion concluded the Texas Legislature is not prohibited from adopting some form of legislation designed to compel local governments to comply with any duties they may have under federal immigration laws, so long as the legislation is not inconsistent with federal law.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Immigration preemption law has developed significantly through later legislation and court decisions, including major U.S. Supreme Court rulings after 2009. The cases and statutes cited here may have been refined or superseded. Do not rely on this analysis as current law without checking the latest authority.

Who this opinion affected (as of 2009)

Local governments: The opinion concluded that policies barring officials, employees, or law enforcement from sharing immigration information with federal authorities, or otherwise cooperating, were likely preempted and a nullity.

The Texas Legislature: The opinion advised that the Legislature was not prohibited from enacting legislation to deter or invalidate such local policies, or to compel cooperation, as long as it stayed consistent with federal law.

Local officials and law enforcement: The opinion explained that federal law protected their ability to communicate immigration-status information to federal authorities, with only narrow confidentiality exceptions.

Common questions

Are local "sanctuary" information policies legal under this opinion?
The opinion concluded that a local policy prohibiting or restricting officials from sharing immigration-status information with federal authorities likely conflicts with federal law and is a nullity.

What federal laws control this?
The opinion relied on the Supremacy Clause and 8 U.S.C. sections 1373 and 1644, which bar prohibiting or restricting the sharing of immigration-status information with federal authorities.

Can the Texas Legislature override such local policies?
The opinion said the Legislature is not prohibited from adopting legislation to deter or invalidate such policies, or to compel cooperation, so long as it is not inconsistent with federal law.

Are there any exceptions?
The opinion noted limited circumstances where immigration status may be confidential (such as a court protective order) and entities with their own affirmative federal reporting duties.

Background and statutory framework

The power to regulate immigration is exclusively federal, and the Supremacy Clause bars state and local actions that frustrate federal immigration schemes (De Canas v. Bica, 424 U.S. 351, 354 (1976); City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999); U.S. Const. art. VI, cl. 2). Federal law forbids restricting the sharing of immigration-status information with federal authorities (8 U.S.C.A. §§ 1373(a), (b)(1) (West 2005), 1644). De Canas yields three preemption tests, and failure of any one means a measure is preempted (Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764-65 (N.D. Tex. 2007)). A policy restricting information-sharing or cooperation likely fails the third, obstacle test (Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000); Hines v. Davidowitz, 312 U.S. 52, 67 (1941); Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)). Narrow exceptions exist for confidential status (Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 511, 514-15 (M.D. Pa. 2007); Doe v. Merten, 219 F.R.D. 387, 395 (E.D. Va. 2004)) and entities with affirmative federal reporting duties (42 U.S.C.A. § 1437y (West 2003)). The opinion cited Oklahoma's compulsion statute as an example (Okla. Stat. Ann. tit. 74, § 20j(F) (West Supp. 2008-09)).

Citations

Statutes:

• U.S. Const. art. VI, cl. 2
• 8 U.S.C.A. §§ 1373(a), (b)(1) (West 2005), 1644
• 42 U.S.C.A. § 1437y (West 2003)
• Okla. Stat. Ann. tit. 74, § 20j(F) (West Supp. 2008-09)

Cases:

• De Canas v. Bica, 424 U.S. 351, 354 (1976)
• City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999)
• Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000)
• Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764-65 (N.D. Tex. 2007)
• Hines v. Davidowitz, 312 U.S. 52, 67 (1941)
• Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985)
• Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 511, 514-15 (M.D. Pa. 2007)
• Doe v. Merten, 219 F.R.D. 387, 395 (E.D. Va. 2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0699
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0699.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

March 19, 2009

The Honorable Frank J. Corte, Jr.
Chair, Committee on Defense and Veterans' Affairs
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0699

Re: Local government policies that hinder enforcement of federal immigration laws (RQ-0733-GA)

Dear Representative Corte:

You ask whether the Texas Legislature has "the authority to deter local governments from adopting policies, or [the authority to] invalidate existing policies, which would hinder state enforcement of the federal immigration laws[.]"[1] You explain your reference to policies that hinder state enforcement of federal immigration laws to include policies that "prevent local citizens, officials, or law enforcement agencies from cooperating with the federal government regarding a person's immigration status." Request Letter at 2. Fundamental to your question is the issue of whether local government policies that hinder enforcement of federal immigration laws are preempted by federal law.

The "[p]ower to regulate immigration is unquestionably exclusively a federal power." De Canas v. Bica, 424 U.S. 351, 354 (1976). And the United States Constitution, through the Supremacy Clause, bars or preempts state and local governments "from taking actions that frustrate federal laws and regulatory schemes" established in relation to immigration. City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999); see also U.S. CONST. art. VI, cl. 2.

Federal law prohibits restrictions on the sharing of information between local governments and the federal government. Specifically, title 8, section 1373 of the United States Code provides:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C.A. § 1373(a) (West 2005) (emphasis added); see also id. § 1373(b)(1) (forbidding a person or agency from prohibiting or restricting a local government entity from sending, requesting, or receiving from the Immigration and Naturalization Service information regarding the immigration status of any individual).

And title 8, section 1644 of the United States Code similarly provides:

Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.

Id. § 1644 (emphasis added); see also City of New York, 179 F.3d at 37 (upholding sections 1373 and 1644 in the face of challenges under the Tenth Amendment and the Guarantee Clause).

The Conference Report to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which adopted section 1644, explains that

[t]he conferees intend to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens. This provision is designed to prevent any State or local law, ordinance, executive order, policy, [or] constitutional provision, . . . that prohibits or in any way restricts any communication between State and local officials and the INS.

H.R. Conf. Rep. No. 104-725, at 383 (1996), as reprinted in 1996 U.S.C.C.A.N. 2649, 2771 (emphasis added). Thus, the larger purpose of section 1644 is to foster state and local cooperation in the enforcement of immigration law, a purpose evident throughout "the comprehensive federal statutory scheme for regulation of immigration and naturalization." De Canas, 424 U.S. at 353 (describing the Immigration and Nationality Act codified in scattered sections of 8 U.S.C.A.).

The Supreme Court's decision in De Canas has given rise to three tests used to determine whether federal law preempts an enactment by a local government relating to immigration. See Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764-65 (N.D. Tex. 2007) (discussing De Canas, 424 U.S. 351 (1976)). The first test examines "'whether a state statute is a regulation of immigration.'" Id. at 765 (citations omitted). The second test examines whether "'there is a showing that it was the clear and manifest purpose of Congress to effect a complete ouster of state power'" in the area of regulation. Id. The third test examines whether the state statute "'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress'" or conflicts with federal law in such a way that compliance with both federal and state law is impossible. Id.; see also De Canas, 424 U.S. at 358 n.5, 363-64 (explaining that the Supremacy Clause requires the invalidation of an enactment that burdens or conflicts with federal laws); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000) ("[W]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects"). "[F]ailure of any one of the De Canas tests requires the conclusion that a state law is preempted." Villas, 496 F. Supp. 2d at 765.

Thus, to answer your question, to the extent a local government policy prohibits or in any manner restricts officials or employees from sharing immigration information with federal authorities, it likely will fail the third De Canas test. See De Canas, 424 U.S. at 358 n.5, 363-64; Villas, 496 F. Supp. 2d at 765. That is, a local government policy that prohibits or restricts officials and employees from sharing immigration information with federal authorities will likely conflict with sections 1373 and 1644[3] and thus, be a nullity. See Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (explaining that state law is nullified when compliance with both state and federal law is impossible or when state law is an obstacle in accomplishing and executing the full purposes and objectives of Congress).

To the extent that a local government policy prevents local citizens, officials, or law enforcement agencies from "cooperating" with the federal government regarding a person's immigration status by means other than restricting citizens, officials, or law enforcement agencies from sharing information, such a policy may also conflict with or "stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" and thus, fail the third De Canas test. De Canas, 424 U.S. at 363 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see City of New York, 179 F.3d at 35 (concluding that sections 1373 and 1644 are not facially "invalid federal measures that seek to impress state and local governments into the administration of federal programs"); see also 75 Op. Cal. Att'y Gen. No. 92-607 (1992) (concluding that "[d]ue to the [S]upremacy [C]lause of the United States Constitution, a city may not prohibit its officers and employees from cooperating in their official capacities with [INS] investigation, detention, or arrest procedures relating to alleged violations of the civil provisions of the federal immigration laws").

Because a local government policy that prevents local citizens, officials, or law enforcement agencies from sharing information or otherwise cooperating with the federal government regarding a person's immigration status is likely a nullity, the question then arises as to whether the Texas Legislature may adopt legislation to deter or invalidate such policies. We have not reviewed the details of any proposed legislation seeking to enact the type of statutes adopted by other states, such as Oklahoma, to compel local governments to comply with any duty they may have to cooperate in the enforcement of federal immigration laws. See OKLA. STAT. ANN. tit. 74, § 20j(F) (West Supp. 2008-09) (authorizing "a private right of action by any natural or legal person lawfully domiciled in this state to file for a writ of mandamus to compel any noncooperating local or state governmental agency to comply with such reporting laws"); Request Letter at 2 (citing to the Oklahoma Taxpayer and Citizen Protection Act of 2007 as "[a] key example of state legislative immigration action"). The Texas Legislature is not prohibited from adopting some form of legislation designed to compel local governments to comply with any duties they may have under federal immigration laws, so long as such legislation is not inconsistent with federal law.

SUMMARY

The Texas Legislature is not prohibited from adopting some form of legislation designed to compel local governments to comply with any duties they may have under federal immigration laws, so long as such legislation is not inconsistent with federal law.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Christy Drake-Adams
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: There may be limited circumstances under which information about a person's immigration status is confidential. See, e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 511, 514-15 (M.D. Pa. 2007) (indicating that a plaintiff's immigration status may be confidential where a court has entered a protective order allowing the plaintiff to proceed anonymously); but see Doe v. Merten, 219 F.R.D. 387, 395 (E.D. Va. 2004) ("it remains unclear whether [8 U.S.C.A. section 1373(a)] reaches a court's inherent power to control its proceedings" including a confidentiality order). A policy recognizing one of these limited circumstances might, therefore, be permissible.]

[Footnote 3: You do not define the term "local government." See generally Request Letter, supra note 1. Some entities, such as public housing agencies, may have affirmative reporting duties such that the type of policy you describe might be preempted under federal provisions other than sections 1373 and 1644. See 42 U.S.C.A. § 1437y (West 2003) (requiring public housing agencies to report individuals who the entity knows are not lawfully present in the United States).]