Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 19, 2009
The Honorable Frank J. Corte, Jr. Opinion No. GA-0699
Chair, Committee on Defense and
Veterans' Affairs Re: Local government policies that hinder
Texas House of Representatives enforcement of federal immigration laws
Post Office Box 2910 (RQ-0733-GA)
Austin, Texas 78768-2910
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 ofthe federal immigration laws[.]"t 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 ofNew York v.
United States, 179 F.3d 29, 35 (2d Cir. 1999); see also U.S. CONST. art. VI, cl. 2.
Federallaw prohibits restrictions on the sharing of information between local governments
and the federal government. Specifically, title 8, section 1373 ofthe 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.
IRequest Letter at 2 (available at http://www.texasattomeygeneral.gov).
The Honorable Frank J. Corte, Jr. - Page 2 (GA-0699)
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 oj 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 Reportto 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, ... thatprohibits or in any way restricts any
communication between Stat~ 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 of8 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 ofFarmers 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 ofstate power'" in the area ofregulation. 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 'I Foreign Trade Council, 530 U.S. 363, 373 (2000) ("[~]hat is a sufficient
The Honorable Frank J. Corte, Jr. - Page 3 (GA-0699)
obstacle is a matter ofjudgment, to be informed by examining the federal statute as a whole and
identifying its purpose and intended effects"). "[F]ailure of anyone 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 wililikelyl conflict
with sections 1373 and 16443 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 oj 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 Ope 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
2There may be limited circumstances under which information about a person's immigration status is
confidential. See, e.g., Lozano v. City ofHazleton, 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
V. 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.
3you do not defme the term "local government." See generally, Request Letter, supra note 1. Some entities,
such as public housing agencies, may have affrrmative reporting duties such that the type of policy you describe might
be preempted under federal provisions other than sections 1373 and 1644. See 42 V.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).
The Honorable Frank J. Corte, Jr. - Page 4 (GA-0699)
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 ofmandamus 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.
The Honorable Frank J. Corte, Jr. - Page 5 (GA-0699)
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