California, We Have a Problem – How Dare You

On Wednesday, Attorney General Jeff Sessions announced a Justice Department lawsuit against California over its recently passed sanctuary state laws.  In a speech to a law enforcement group in Sacramento, Sessions said, “Immigration law is the province of the federal government.... There is no nullification. There is no secession. Federal law is ‘the supreme law of the land.’" Sessions singled out the Mayor of Oakland specifically: “How dare you. How dare you needlessly endanger the lives of law enforcement just to promote your radical open borders agenda.”  Despite the bravado, the outcome of the Justice Department’s case is not as clear-cut as it might seem.

We start with the Supremacy Clause of the U.S. Constitution.  Article VI, Clause 2 clearly says federal laws, treaties, and the U.S. Constitution are the supreme law of the land.  But the only power over immigration given to Congress in Article 1, Section 8 is the power to establish a uniform Rule of Naturalization – who gets to be a citizen.  The idea that the federal government could regulate other aspects of immigration, such as the deportation of noncitizens, came from the Supreme Court, and not until 1889.  In the Chinese Exclusion Case, the Court found that the federal government had plenary power over immigration as a matter of national sovereignty.  The federal government has inherent sovereign power when it comes to immigration, the Court ruled.

Accordingly, the Supreme Court has typically held that federal law preempts state law when it comes to immigration.  In 1941, the Supreme Court knocked down a Pennsylvania statute requiring aliens to register with the state and carry a state-issued ID card. [Hines v. Davidowitz (1941)].  The state statute was preempted even though federal immigration law did not expressly declare state registration statutes preempted, and even though the statute did not impede the implementation of federal law.  Most later cases have reached similar results [Chemerinsky, Constitutional Law 4th ed. p. 413], but a 1976 case [De Canas v. Bica] found that a state could by law bar the employment of undocumented aliens.  The Supreme Court found that Congress had intended to allow states to regulate the employment of illegal aliens to some degree.

In the new case announced Wednesday, the Justice Department is targeting three provisions of California law.  One [SB 54] prevents state and local law enforcement officials from sharing information about criminal aliens in their custody and prevents their transfer to federal custody.  Here, there’s a ‘commandeering’ issue.  The federal government cannot make state and local officials enforce federal law.  That’s a violation of the 10th Amendment.  The wrinkle here is that a federal statute tries to get around this by prohibiting higher-level state and local officials from instructing their underlings not to share immigration information with the feds.  Thus, the federal government isn’t actually ordering anyone to do anything.  It’s all passive.  One observer calls this a distinction without a difference and expects California to prevail on this issue. 

A second provision [AB 103] allows state inspections of facilities where federal agents are holding immigrants pending court dates or deportation.  Some of these facilities are owned by local governments and the state, others by private contractors.  The Justice Department calls this an unconstitutional interference, an attempt by the state to regulate federal detention which depends on the state gaining access to privileged federal records.  The other side of the argument is that these state inspections do not really conflict with federal requirements because they do not prevent the federal government from detaining anyone, nor do they obstruct the enforcement of federal law in any way. 

A third provision [AB 450] prevents private employers, unless ordered by a court, from cooperating with ICE raids, or pay a fine up to $10,000.  There’s an admission in the legislative history that California deliberately did this to frustrate “an expected increase in federal immigration enforcement actions.”  In the Arizona case, decided in 2012, the Supreme Court held that state law is preempted if it obstructs an objective of Congress and thus stands as an obstacle to federal aims.   Workplace raids are a standard immigration enforcement tool.  Preventing employers from cooperating might well constitute an obstacle or obstruction of federal law.  This appears to be the strongest part of the Justice Department’s case. However, the Arizona case also contains language which suggests that the federal government’s claims of obstruction will have to be examined individually and might or might not hold up to scrutiny.

To its defenders, California is not trying to make its own immigration laws, just restrict the extent to which the state and private employers assist in the enforcement of federal law.  To Jeff Sessions, the federal government is “simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement.”

The Justice Department is asking for a preliminary injunction, so we should get a preliminary ruling from a federal judge fairly soon.