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Trump gave Arpaio a break, but their immigration cause just took a legal hit in Texas

Joe Arpaio's illegal-immigration crackdown made him a polarizing figure and an early ally of President Trump. (Video: Meg Kelly/The Washington Post)

As former Arizona sheriff Joe Arpaio basks in his pardon from President Trump, the cause that he and Trump share so passionately — cracking down on illegal immigration — just suffered a legal setback in Texas.

Late Wednesday, a district court judge in San Antonio paused much of Texas's controversial sanctuary cities ban, which the legislature passed in the spring and was set to go into effect on Friday.

The law is one of the toughest in the country. It allows jail officials to be charged with a misdemeanor if they knowingly refuse to hand over immigrants that the federal government asks for, and it allows police to question people's immigration status when they are arrested or detained, like at a traffic stop.

U.S. District Court Judge Orlando Garcia temporarily blocked most of the law from going into effect until there is a trial on its constitutionality.

It's the latest blow for President Trump's attempt to force sanctuary cities to bend to his will. But this legal battle is far from over. In fact, it's possible the case over Texas's sanctuary cities ban goes all the way to the U.S. Supreme Court and sets legal precedent for other states considering one.

Here are five (updated) legal questions Texas's sanctuary cities ban raises, and some preliminary answers.

1. Can a state legally force a community to comply with a federal deportation request?

We don't know yet. But this initial ruling on Texas's sanctuary ban gives us some clues. The San Antonio judge halted a central piece of the law, the threat of punishment for officials who don't hand over immigrants the federal government requests. Local law enforcement should be able to make an independent assessment of whether to detain someone, Garcia said.

Gov. Greg Abbott (R) was not happy. “Today’s decision makes Texas’ communities less safe,” he said in a statement.

Texas will appeal immediately, Abbot said. A central part of his argument is likely to be that the state should be able to punish local authorities for not following state and federal law. Which raises another interesting question: How much authority does a state have over a locality? As state legislatures trend red and city governments blue, that tension is manifesting in everything from immigration, to LGBT rights, to minimum wage debates.

“One of the next big legal issues on the horizon is the legal relationship between a state and a city,” said Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project.

2) Does this law target people because of their race?

There's no evidence of this yet, the judge ruled. Texas is not the only state with some kind of attempt to ban sanctuary cities. But it is one of the few states to try to allow police to question people's immigration status when they are arrested or detained. (Arizona was the other, and much of that law got struck down by the U.S. Supreme Court.)

The cities challenging this ban (Houston, Dallas, San Antonio, El Paso) argued it would encourage racial profiling from police, which is what Arpaio got in legal trouble for.

The judge wasn't convinced. Garcia essentially said police should be given the chance to prove they can ask about someone's immigration status without racial profiling.

But the judge also left the door open for the ACLU to try to prove that there is racial profiling.

“That's one of our big concerns,” Gelernt said, “that the only people who will be asked for their immigration status in Texas are Latinos.”

3) Are the federal government's deportation requests even constitutional?

We don't know, but this question is winding its way through federal courts, too. Most recently, a U.S. citizen in Illinois sued the government for holding him in jail without probable cause other than a deportation request. And he won: A federal court decided the federal government can't make a local government hold someone longer than they otherwise would without a warrant.

4) Can Trump ban sanctuary cities?

No, and he's running out of options to make them bend to his will. Ignoring deportation requests is perfectly legal under federal law, which means the Trump administration can try to withhold federal funds from communities that don't comply with deportation requests.

Except, in April, a federal judge in California said that method is unconstitutional, too.

Before it left for the summer, the House of Representatives passed a bill to allow Trump to withhold federal grants from sanctuary cities. But the bill will likely be dead on arrival in the Senate, where Democrats can filibuster the legislation.

Why Donald Trump may not be able to close sanctuary cities with the wave of a pen

5) Can Texas sue sanctuary cities like Austin for not cooperating?

So far, no. Less than 24 hours after Abbott signed the ban into law, Texas Attorney General Ken Paxton (R) pulled the first punch in the legal battle by filing a lawsuit alleging almost all of Austin's city officials are “publicly hostile to cooperation with federal immigration enforcement.”

The sanctuary city on the front line of the fight over Trump's immigration policy

But a judge in Austin threw that lawsuit out, which means Texas officials' only hope to get their sanctuary cities ban implemented is to appeal to a federal court.

To be continued …

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