Bill to ban probation for illegal immigrants likely DOA after devastating critique of (un)constitutionality

When state Sen. Joan Huffman, a former district judge, filed her SB 174 forbidding sentences of probation for "illegal aliens," Grits was dismissive, declaring the bill should be dead as soon as its Fiscal Note was calculated and the costs were determined.

It didn't take that long. The bill likely, effectively died night before last when the Houston Chronicle published an item on its website by Prof. Geoffrey Hoffman of the University of Houston Immigration Clinic titled "Houston senator's 'illegal aliens' bill is itself illegal." Hoffman offered up a devastating and IMO irreparable constitutional critique that Sen. Huffman seems unlikely to overcome.

While his discussion of federal case law was compelling, according to Hoffman, the Texas Constitution includes "arguably more expansive equal protection provisions," even, than the 14th Amendment to the US Constitution. The article concluded:

In section 3a, [the Texas Constitution] 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.

That's a strong argument. The inclusion of "national origin" in Texas' equal protection guarantee seems to this non-attorney pretty much decisive. It's hard to see the Legislature seriously considering this bill now that these grave constitutional flaws have been exposed, especially given the sky-high fiscal note the idea would surely receive if the proposal ever got far enough along in the process for the LBB to determine its cost.

Don't get me wrong, The Texas Legislature passes unconstitutional stuff all the time. But usually they maintain plausible deniability about a bill's defects at least until after its effective date. In this case, SB 174's flaws have been exposed before its first hearing and the bill would have to be altered beyond recognition to avoid running afoul of the constitutional problems Mr. Hoffman identified. Well done, sir.