The Inconvenient Role of Texas Public Opinion in This Week's SB 4 Ruling

On August 30, a federal court in San Antonio issued a temporary injunction halting the September 1 implementation of part of Senate Bill 4, the so-called anti-Sanctuary Cities bill passed during the regular session amid much controversy, including heated confrontation on the floor of the Texas House on the last day of business. The decision temporarily blocked implementation of provisions designed to force local authorities to cooperate with federal immigration authorities and to mete out various punishments to local governments and specific individuals that enact policies limiting enforcement and cooperation, but let stand the provision guaranteeing the ability of law enforcement officers to inquire about the citizenship status of anyone they have lawfully detained. The ruling concluded:

[T]he Court's role is limited to determining the constitutionality of a statute, not its wisdom or necessity. That is within the sole discretion and prerogative of the Legislature. There is overwhelming evidence by local officials, including local law enforcement, that SB 4 will erode public trust and make many communities and neighborhoods less safe. There is also ample evidence that localities will suffer adverse economic consequences which, in turn, harm the State of Texas. Indeed, at the end of the day, the Legislature is free to ignore the pleas of city and county officials, along with local police departments, who are in the trenches and neighborhoods enforcing the law on a daily and continuing basis. The depth and reservoir of knowledge and experience possessed by local officials can be ignored. The Court cannot and does not second guess the Legislature. However, the State may not exercise its authority in a manner that violates the United States Constitution. (p. 92-93)

A relatively thin section of the justification for the ruling invoked the public interest, illustrated in part – oddly, it seems, though there are no lawyers in the byline here – by the reminder that a lot of people are opposed to SB 4. As the judge wrote:

On February 2, 2017, when SB 4 was being considered in the Senate, eight witnesses showed up to support SB 4 and over 1,600 witnesses showed up to oppose it. Docket no. 77, exhibit 1 -D. The named plaintiffs in this lawsuit include five of the six largest cities in the State of Texas – Houston, Dallas, San Antonio, Austin, and El Paso – and their cumulative population exceeds six million people. This is representative of the public opposition to SB 4 and the overwhelming public concern about its detrimental effect. The public interest in protecting constitutional rights, maintaining trust in local law enforcement, and avoiding the heavy burdens that SB 4 imposes on local entities will be served by enjoining those portions of SB 4 that the Court has preliminarily determined are preempted or are constitutionally invalid on their face. (p. 92)

This suggestion that there is "overwhelming public concern about its detrimental effect" invites consideration of public opinion.  In the June 2017 University of Texas / Texas Tribune Poll, we asked Texans about the two sets of provisions treated in this week's decision. To the extent that concern might be thought of as overwhelming, it was not in the direction the ruling took.

A majority of Texans expressed support for the provisions that were left in place. We asked respondents whether they supported or opposed each of a list of proposals entertained by the legislature during the regular session (which had recently concluded at the time of the poll), including "Ensuring that police officers have the right to question a person's immigration status during a legal detainment, like during a routine traffic stop." Texans were closely divided: 53 percent supported the proposal, 42 percent opposed it. As the data below illustrate, Republicans strongly supported the measure, while Democrats largely, though not quite as intensely, opposed it. The proposal was particularly well-received by conservatives, as indicated both by the high levels of support among those who identify as "extremely conservative" and/or identify with the Tea Party when given the opportunity to do so elsewhere in the survey.

Another item in the same question battery broadly addressed the parts of SB4 the court chose to temporarily enjoin from implementation, expressed in the survey item as "Requiring local law enforcement to cooperate with immigration authorities."  Support for this set of provisions, found to be constitutionally suspect by the judge, was a bit stronger. Overall, 58 percent expressed support, 33 percent expressed opposition. (A higher share were undecided). Republican and conservative support was again overwhelming, while Democrats, though largely opposed, were somewhat more divided than they were on the other provision included in the poll.

These specific attitudes exist atop a base of attitudes toward immigration that are highly polarized along partisan lines. As is commonly observed, immigration and border security are highly salient issues for Republicans in Texas (as elsewhere – but especially here), and Republican attitudes tend to be restrictive when it comes to illegal immigration and punitive when it comes to treatment of those already in the country. The reactions of Texas elected officials to the ruling, as well as the original debate over SB4, no doubt reflect this dynamic.

The judge's discussion of the "public interest" hinges in part on a judgment about public opinion to support his ruling, particularly the part that halts enforcement of the provisions. Available data based on actual polling would have, at best, clouded this argument, or at least required the judge to rely more on the core logic of the decision – which is that the constitutionality of the measures is paramount in considering whether to at least temporarily enjoining their implementation. Public opinion does not trump the Constitution, and the discussion of the public interest is only a small part of the reasoning at work. But given data that is more representative than what the judge chose to use in the ruling, it may not have been the best rhetorical play to start counting supporters and opponents in the first place – especially in Texas.