UNHEEDED: Rep. David Whitaker said sanctuary city bill is "facially unconstitutional." It was passed anyway.

With critical help from House Speaker Matthew Shepherd, the House today passed a bill to punish cities that adopt policies that the attorney general deems “sanctuary” for undocumented immigrants.

UPDATE: Gov. Asa Hutchinsonsaid he’ll sign it despite concerns about its constitutionality.


The vote was 71-24, with one voting present. Here’s the roll call, which doesn’t reflect four “paired” votes — two on each side of the question agreed in advance because of absent legislators. The ayes in the pair were Charlene Fite and Jack Ladyman; the nays Stephen Magie and David Whitaker.

The bill came out of committee yesterday after Committee Chair Dwight Tosh overruled Rep. Fredrick Love’s objection to consideration of a bill without an impact statement. Rep. Charles Blake (D-Little Rock) raised an objection to consideration of SB 411 this morning on the same ground. Shepherd announced that the rule (there’s also law) requiring an impact statement wasn’t applicable. He sounded irked when Blake asked for a statement on the record from Shepherd and the House parliamentarian on the ruling. Shepherd said his ruling was the extent of what he would say.


In floor debate on the bill, Rep. Brandt Smith (R-Jonesboro) again recited crimes committed by people in the country without documentation. It’s a familiar argument though something of a non sequitur.  Crimes are committed by legals and illegal alike, at a lower rate by aliens many studies have found

The bill has constitutional problems. It will encourage racial profiling by law enforcement. Some existing city policies in Little Rock and elsewhere — an ID program particularly — could be challenged under this law and cost cities grant money if the attorney general decides the policies violate the law. Another constitutional question is whether fact-finding is a duty allowable for the attorney general under the state Constitution.


Smith acknowledged that a witness, Mireya Reith, had said the law could lead to lawsuits. “I don’t like threats like that,”  Smith said. He rebuked those who call his bill a solution looking for a problem by again reciting a litany of crimes by aliens.

Rep. David Whitaker (D-Fayetteville), a lawyer, said the bill was “facially unconstitutional.” He said the attorney general will become “judge, jury and executioner” for anyone accused of violating the law. “Our constitution abhors any one official having such unlimited discretion.” The silence of the bill on procedural due process is also “deafening,” he said.

Would a city be told they were in violation of law? Will there be a hearing? Will the city have an opportunity to be heard and to confront witnesses against them. “Nothing. Nothing is in here.” He said that a provision for an appeal to circuit court is all but meaningless under the law because there’s no record on which to mount a legal appeal. Nor is there a provision for a new trial on the facts, Whitaker said.

Though Shepherd lifted a potential obstacle to the bill’s consideration, he did refuse early motions to cut off or limit the debate.

Rep. Marcus Richmond
 (R-Harvey) contends the statute only provides that Arkansas will follow federal law. “There’s nothing unconstitutional about that,” he said. He didn’t address the state constitutional issues Whitaker cited. Richmond also answered those who claim racial profiling by saying he’d been racially profiled while serving abroad in the military. He said this bill wasn’t about profiling.


Rep. Megan Godfrey (D-Springdale) spoke against the bill because of the “fear and heartbreak” she’d heard from people in her district. “It causes unease and hurt in diverse communities like mine,” she said. She appealed to our “common faith in Jesus Christ” and the values he taught — welcoming the stranger, creating spaces of safety and warmth for those from elsewhere, loving neighbors, helping those on the margins and those difficult to love. “When we welcome them, we welcome Him,” she said. She said she had no objection to laws, but they should be just and fair.

Rep. Nicole Clowney (D-Fayetteville) said “sanctuary” is a political term. There is no federal legal definition of the term and the state proposal provides none. She notes it covers policies “formal or informal” adopted by “custom or practice.” What does it mean to establish an informal practice, she asked. The bill will open cities to civil rights lawsuits.

“You can be in favor of anti-sanctuary city legislation and still oppose this bill,” she said. It opens up cities to litigation; it creates distrust among immigrant populations; it’s an unfunded mandate for city expenditures, though there’s no fiscal impact statement. “It was rushed through at the last minute without the information” needed to make a good decision, she said.

“This bill is bad medicine for a problem the bill’s own sponsor admits doesn’t exist.”

Note: There WAS a last-minute nominal impact statement put in the record yesterday afternoon. It’s a thin analysis.

Gov. Asa Hutchinson has said he has objections to the bill as written because it lacks due process protection but sponsors refused to amend it. Might he veto it? He’s been unwilling to say. He’ll likely be reluctant to do so, and not only because of the volatile subject matter. A veto override requires only a simple majority vote and it passed by heavy majorities in both houses.

Hutchinson likely will address the issue at 3 p.m. today when he signs two bills friendly to immigrants — one allowing DACA nurses and the other allowing in-state college tuition for “dreamers.”

UPDATE: Gov. Asa Hutchinson said at the news conference that he’ll sign it despite having earlier expressed concerns about its constitutionality. He said he agrees in principle that cities should follow federal law, but reiterated concerns about racial profiling. He says he has a commitment from Sen. Gary Stubblefield, the sponsor, to work at the next legislative opportunity to address that issue.

“I have indicated that this is problematic that it is not included because it could lead to policing without any guidelines, and police using their own judgments that could be based upon what a person looks like versus good law enforcement policy. So that needs to be changed,” Hutchinson said.

When asked why those concerns weren’t enough for him to veto the bill, the governor contended that there were no cities in Arkansas at risk. “I looked at the bill’s definition of ‘sanctuary policy,’ and I actually inquired with a number of different police departments as to how they handle these matters, and we don’t have any city that would meet the definition. … So I don’t see any change in policy going forward that would be disruptive to our society,” he said.

Asked about the Little Rock ID program, the governor said he didn’t think that fell under the definition of a sanctuary policy. But that’s not clear in the legislation. We won’t know until it’s challenged.

Not a shining moment for Hutchinson. He could have done as he’s done on some other bills he’s been unenthusiastic about and let it become law without his signature.

Sponsors claim the bill prohibits racial profiling. Critics say the clumsy writing negates any effort to prevent it.