Houston Republican Offers Up Unconstitutional Bill

Local Republican state senator Joan Huffman filed SB 174 which would deny “community supervision” or probation to defendants in state criminal courts deemed “illegal aliens” by a state court. According to Gregory Hoffman who heads up the UH Law Immigration Clinic such a law would be unconstitutional, and he said so in an op-ed in the Chron.

Senate Bill 174 proposed by state Sen. Joan Huffman, R-Houston, purports to deny “community supervision” to certain defendants who in state criminal courts are found to be “illegal aliens.” Such a proposed rule is plainly unconstitutional under both the federal and Texas state constitutions. More than that, it illustrates the danger of branding people without any understanding of the complex immigration laws governing noncitizens.

Long story short, the state (including judges) cannot create their own immigration laws, or laws that make it a crime to be an undocumented individual in this state. The recent Arizona case decided by the SCOTUS made that quite clear. That Huffman has decided to use a demeaning term like “illegal alien” to describe people says much about her and those who would support such a bill. That the Republican would want to waste scarce budgetary resources to further fight for such a bill in the courts (because it would end up there) shows that Republicans are more interested in wasting money, than creating practical solutions, or at the very least, supporting comprehensive federal immigration reform. Moreover, Huffman, as a former judge, should know better than to offer up something that is unconstitutional, unless her intent is to clog up the courts until she gets a decision she wants.

Obviously, we’ve been down this road before and Republicans remain adamant about attacking the defenseless, whether they have papers or not.

Even with all of the SCOTUS decisions that would back up Professor Hoffman’s assertion, even our own Texas Constitution seems to back him up.

The Texas Constitution has similar, even arguably more expansive equal protection provisions. In section 3a, it provides that “Equality under the law shall not be denied or abridged because of sex, race, color, creed” or – importantly – because of “national origin.”

Furthermore, section 3 of the state’s constitution provides for equal treatment under the law, considering that “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments. …”

The Texas Legislature should carefully consider what a misguided rule like the one proposed in SB 174 would mean. Texas judges are not immigration judges. But even if they were, the determination whether or not someone should be branded an “illegal alien” is determined after a lengthy process by the Executive Office for Immigration Review, a branch of the U.S. Department of Justice.

The decision is made considering the availability of relief, after a full review of a person’s personal and immigration history, among many other factors. A rule which brands people without due process, and in violation of equal protection, cannot stand.

All of this said, I wouldn’t expect overzealous right-wingers to follow the law when they have been on this anti-immigrant, anti-Latino trip since at least 2006 at all levels of government.

Let’s hope though that, as Grits for Breakfast tells us, Professor Hoffman’s op-ed has helped to effectively kill this bill before it even gets out of committee.

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