ACLU Texas Takes On Far Right In Homeland Security Committee Over Unconstitutional Bill - Lone Star Left

[TexasTowelie]

Transcript:

ACLU of Texas against the bill is that
correct that's correct
proceed thank you chair Hefner members
of the committee um HB 1832 by enhancing
the criminal penalties related to Legal
entry uh not only further complicates an
already unconstitutional law but also
actually makes it more unconstitutional
um that's for a couple of reasons one we
kind of all know about we've heard a lot
about field preemption uh in this body
uh as of late the field preemption here
is long-standing precedent from the
United States Supreme Court that gives
and I quote the authority to control
immigration to admit or exclude
non-citizens vested solely in the
federal government that's long-standing
case law dating back to 1915 um I think
more so than field preemption though
this bill specifically creates conflicts
conflict preemption now field preemption
is when something is so regulated by the
federal government as to prohibit its uh
it's regulation by the state in this
case we're talking about actual specific
conflict preemption and I think it's in
two different ways one by adding penalty
enhancements um the conflict is actually
can be and the Supreme Court has
recognized this since case since 1971
quote conflict in can in technique can
be as fully disrupted for the system uh
Congress enacted as conflict in over
policy
our system here of adding these enhanced
criminal penalties as opposed to removal
which is the uh remedy for for a lot of
these things under federal law
specifically conflicts creates a
conflict between the technique of
enforcing the law uh even if we were to
say that it had the same end game and
the end goals as the federal
government's position did uh more
specifically there's a a direct conflict
because these penalty enhancements uh
apply
to foreign convictions now foreign
convictions become especially important
when you're looking at uh Asylum
protections which S4
uh had some problems on the Asylum
protection front it's one of the things
cited in the case that has led to the
law being enjoined is that it does not
allow for the affirmative defense of an
asylum Seeker uh to aate prosecution
under this statute that becomes even
more problematic when you're talking
about foreign convictions because the
Asylum Seeker may be seeking Asylum very
much because of a foreign conviction uh
someone who is unfairly prosecuted for
political reasons in another country uh
could see could find themselves in a
situation where they're Asylum claim is
actually based on a conviction uh where
they weren't given adequate due process
as they would be in the American legal
system um and we're actually enhancing
their penalty making it harder for them
to seek the asy and protections that
they're entitled to under federal law uh
and therefore creates even greater
constitutional problems than those that
uh that already existed um I would say
that you know there is really just no
coherent way in which the federal
government can uh or the state
government can be handing down criminal
penalties uh related to immigration
whether it's these enhancements or in
the original TT that does not violate
the constitution um and we would urge
the committee not to move this this bill
forward knowing the Constitutional
concerns that exist with the law that's
currently in joined that this this
modifies and the new constitutional
concerns that it creates thank
you members are any questions for this
witness Mr
lck so yes sir Mr Hendrickson you you uh
work for the ACLU correct that's correct
so if an illegal alien comes in this
country um again and break it breaks the
law again and he's already been deported
so it's another uh federal felony you're
saying that we don't you don't think the
state can increase the penalty on
that I don't think that the state first
of all I would say it's a federal felony
to reenter the country um immigration
matters are civil if you've been
deported it is
well immigration matters are civil
proceedings so and in any case they have
a criminal penalty in any case the the
law would be properly enforced by the
federal government in that case and not
the state
government you can go to jail for the
federal penalty why can't we do that as
a
state for the reasons I laid about out
about preemption the court has long
found that the Federal government has
plenary power over immigration uh there
are a number of reasons for that um one
would be that it impacts international
relations uh we have international
relations are you serious absolutely
that is the reason to invest it in the
federal government not to do nothing
about it but because it is impacts our
relationship with other countries the
Constitution has very clearly lays out
that immigration shall be handled by the
federal government um and and therefore
we have allowed those decisions to be
vested at the federal level and State
enforcement of immigration laws has long
been preempted by by federal law um most
recently of course in the USV Arizona
case from 2012 in which they found that
multiple provisions of Arizona law uh
related to criminal penalties um for
employment uh employing uh applying for
employment with false identification uh
of immigration status which is a federal
crime uh and can be a federal crime
could only be enforced by the federal
government that a a similar State
Statute was not allowed because it is
pre Ed by federal law which addresses
the
issue it's real clear after the last
four years that we need to take care of
our state thank
you representative
mlin
so kind of going with Sheriff lauderback
there so when you cross the border you
already broke illegally you already
broke the law so now you want us to
reward you and not prosecute you for
crimes that you're doing because you've
already broke the law that that's our
problem today in this country we keep we
keep condoning it I can tell you as a
mayor of of communities along the border
we caught pedophiles convicted rapists
murderers and we released
them back into our back back into our
country that's not taking care of our
citizens and we should enhance the
penalties if they come over here if we
go to their country and commit these
crimes we're not going to be given
anything consideration to be perfectly
clear if there is evidence that they
committed those crimes in the United
States of America where we have full
jurisdiction we absolutely can enforce
the law there it's the immigration
component that is related to that is so
entwined intertwined in this bill um
which is what the district court pointed
to when they looked at us before that is
problematic the the prosecution of
crimes under state law for the offenses
you just listed no problem there with
with the Constitution that it falls
under the state's general police Powers
which has long also been held to be in
within the state's purview it is when
you get into the legal entry aspect of
this uh that it becomes problematic and
I'll give you one example going back to
the the issue of Asylum here um the
federal law around Asylum says whether
you whether or not you entered at a
legal Port of Entry you have up to one
year to file a valid Asylum claim um
that is perfectly allowed under federal
law that is not allowed under the
construction that we're talking about
here and not allowed under the law that
we're enhancing the penalties for in
this bill but H but haven't we in our in
our federal government now
got away from the definition of what
true Asylum is and we can claim Asylum
now for just about anything no I
wouldn't say that that's true at all um
I think uh you know it's important to
understand I think the historical
context of Asylum uh Asylum is one of
the Cornerstone foundational uh parts of
international human rights law it came
into being uh as part of the UN
Declaration of Human Rights after in
1947 after the the Holocaust um knowing
how many countries including the United
States and Elanor Ros was our
representative there and knowing that
her husband had been involved in this
had denied access to Jewish refugees uh
seeking protection from the Nazis on
repeated occasions when given the
opportunity and presented with the
evidence we created a sort of
fundamental right in that document now
the now of course un declarations are
not binding on the federal government or
the state government but through the
1967 protocol uh we joined into uh and
which further than 1951 uh ref um
protocols that were put in place by the
UN we became signatories to that treaty
and we agreed to acknowledge uh Asylum
claims so um no I don't think that
Asylum claims are broken I think you
know we have a backlog I think that the
federal government would be well well
off to invest more in making sure those
cases are heard and adjudicated uh
timely but um as far as claiming that
just Asylum as a blanket protection is
not important I know I wouldn't go that
far well I mean I I respectfully agree
to disagree with you on that because
they were being coached on what to say
just to not to claim an asylum Clause
that we saw in the South Texas and going
back to what Sheriff lback said when our
federal government doesn't protect its
own citizens and citizens of in our
country in our case in South Texas
become second class citizens and illegal
immigrants have better rights than our
own citizens is wrong in my opinion
that's just that's my
opinion representative Pearson thank you
chairman thank you Mr Hendrickson for
your testimony I do want to focus on the
Asylum piece um if we could um as I read
the bill this is for certain criminal
offenses evolving illegal entry and if
you go down to section one um dangerous
aliens at so I I think you would agree
or or maybe you don't are Asylum Seekers
dangerous
aliens I I wouldn't I wouldn't classify
all Asylum Seekers uh in any one way
well you're including Asylum Seekers
here in this bill I'm not seeing that so
I'm just trying to figure out how you're
grouping Asylum seekers in with
dangerous aliens which it cites out
specifically what crimes would be have
to be committed and I'm trying to figure
out why you're including Asylum Seekers
with the criminals well in this case I'm
I'm I think I'm very much focusing in
the interest of being on the build
that'ss in front of us on those foreign
convictions for similar crimes those
foreign convictions that were allowing
to be the basis for penalty enhancements
could come from the very country where
the person is seeking political Asylum
from they could have been in a complete
and utter kangaroo court that was
existed solely to charge a political
opponent with a crime which could be in
and of itself the basis for an asylum
claim um I think we're we can't assume
that the convictions of another another
country uh follow the same due process
that we would require here for a
criminal conviction um that those same
protections were afforded and in the
worst cases we could be sending someone
back to a country where they will be
improperly imprisoned for a crime they
didn't commit because of their political
beliefs and that is very much what our
Asylum laws are intended to
protect but again this bill is not
referencing Asylum seekers in any way
and I would argue that the people of
Texas care less what another country
determines is illegal or not but once
they come across the border illegally
again just looking at the bill it says
punishment for the certain criminal
offenses involving illegal entry or
illegal presence in this state by a
person who is an alien so are you
arguing that we should just turned a
blind eye to people who are committing
crimes I don't see in there where
there's a reference to a a State Crime
that is permissible to I again and I am
saying very clearly here that this is
about the state enforcing it versus the
federal government and the fact that
it's unconstitutional is not about the
fact that there is no let me give you an
example we have a Criminal Alien in the
state of Texas who go by the bill
involving drugs or crimes against a
person we we should not we should turned
a blind eye to that uh I think that you
can absolutely prosecute the crime that
you're talking about there but
Prosecuting the illegal entry aspect of
that is solely within the jurisdiction
of the federal government I think the
people of Texas would disagree with you
I hear your point but a lot of the times
when you're you're grouping in sections
of people who aren't encompassed in
legislation like this your your argument
Gets Lost in
Translation um again just reading the
bill itself we are talking about people
who illegally come into this country and
commit crimes against citizens here
you're saying
we should not use that as a part of
increasing the penalty well I'm saying
first of all that that's not all that
the bill does because it does but on
that piece is that what you're saying I
want you to tell me is is that what
you're arguing today is that we should
not enhance the penalty of a criminal
who's committed a crime drugs or
violence against a person we as a state
should not increase penalties on those
people I think that it would be within
the legislature's right to increase the
penalty for the crimes that you're
talking about but relating it back to
the legal entury falls again squarely
into and and I we can we could debate
whether what the penalties for those
crimes should be but this bill and
especially when you read these
enhancements in the context of the
statute that they're tied back to it's
not all reproduced in the bill is about
illegal entry this is the crime of
illegal entry that is the crime these
enhancements are related to other
aspects related to the defendants
criminal history potentially but the
crime itself is either illegal entry or
legal re-entry and when you're talking
about whether those penalties should be
enhanced we can talk about what the
penalties should be for the underlying
offenses but in terms of regulating
criminally the illegal entry or illegal
re-entry that again under the USP
Arizona law case and long-standing
Supreme Court precedent uh Falls solely
under the purview of the federal
government so it does have to relate
back to what we're enhancing which crime
we're enhancing the penalty for and in
this instance in this bill the the
underlying crime is either illegal entry
or illegal re-entry well in many cases
past behavior is a prediction of future
behavior and in just a regular court
system if there's a pattern of behavior
that's what increases the penalties and
if you're saying that we should not take
in
consideration if a federal law was
broken or not that's I don't understand
that I'm saying that it that we
shouldn't even be in the business of
charging the underlying crime because
it's solely in the federal jurisdiction
and that is the way that our
constitution is structured and that in
order to be in line with the
constitutional principles long-standing
constitutional principles giving plary
power over immigration to Congress um
penalty enhancements or not this crime
is not within the state's jurisdiction
to charge in the first place well we're
going to disagree on that one thank you
for being here thank
you members any other questions
represent
Vach so Mr Hendrickson
as we explore this thing you brought up
several several interesting uh ideas and
they're related to
1832 but you even mentioned a kangaroo
court uh for a s status and you you
quoted World War II uh with with n a war
with Nazi Germany on a Sil status and
we've just went through four years of a
kangaroo court for sure on status it's
been horribly abused so in in the
overall scheme of things here
um what chairman G is bringing to the to
the table is individuals caught
reentering the country with a prior
record so this is this is definitely
within the purview of the State of Texas
uh getting into this area here under
several different Clauses but uhu but
self-preservation of the state is is one
thing when the federal government will
not do that and has proven that um and
we have to take items in our own hands
in order to get this done so so um you
know we're going to have to probably
disagree about that but uh uh from your
position here but I I think legally it's
been proven for some time now that we're
able to do these things thank
you all right if there's no other
questions we uh appreciate your
testimony thank you for being here chair
calls Luis Figaroa