Federal Government Sues California Over “Sanctuary Cities” Laws

The Federal Government has fired another shot in the ongoing war over so-called "sanctuary cities."

The Federal Government has filed a lawsuit against California arguing that several new laws passed by the legislature and signed into law by Governor Jerry Brown impose an impermissible block against the ability of the Federal Government to enforce immigration laws:

WASHINGTON — The Trump administration escalated what had been a war of words over California’s immigration agenda, filing a lawsuit late Tuesday that amounted to a pre-emptive strike against the liberal state’s so-called sanctuary laws.

The Justice Department sued California; Gov. Jerry Brown; and the state’s attorney general, Xavier Becerra, over three state laws passed in recent months, saying they made it impossible for federal immigration officials to do their jobs and deport criminals who were born outside the United States. The Justice Department called the laws unconstitutional and asked a judge to block them.

The lawsuit was the department’s boldest attack yet against California, one of the strongest opponents of the Trump administration’s efforts to curb immigration. It also served as a warning to Democratic lawmakers and elected officials nationwide who have enacted sanctuary policies that provide protections for undocumented immigrants.

“The Department of Justice and the Trump administration are going to fight these unjust, unfair and unconstitutional policies that have been imposed on you,” Attorney General Jeff Sessions planned to say on Wednesday at a law enforcement event in Sacramento, according to prepared remarks. “I believe that we are going to win.”

The battle pits President Trump and Mr. Sessions, immigration hard-liners, against Mr. Brown and Mr. Becerra, who have emerged as outspoken adversaries who have helped energize opposition to Mr. Trump and vowed to preserve the progressive values that they believe California embodies.

The lawsuit claims that the statutes “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law.” It also says the laws regulate private entities that want to cooperate with the federal authorities and “impede consultation and communication between federal and state law enforcement officials.”

Mr. Brown called the lawsuit a “political stunt.”

“At a time of unprecedented political turmoil, Jeff Sessions has come to California to further divide and polarize America,” Mr. Brown said in a statement. “Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!”

California began battling the Trump administration even before Mr. Trump took office, standing in opposition on a number of issues, including marijuana, environmental regulations and taxes. But immigration has proved to be the most contentious fight, with local officials assuring undocumented immigrants that they would do all they could to protect them.

Last year, California enacted the sanctuary laws, which restrict when and how local law enforcement can cooperate with federal immigration enforcement officers.

(…)

The lawsuit filed on Tuesday evening in Federal District Court in Sacramento is the first against a local or state government over its immigration policies filed by the Justice Department under Mr. Sessions. Department officials said that they would not rule out the possibility of other lawsuits against local governments whose policies interfere with the federal government’s authority on immigration. Colorado, Illinois, New Mexico, Oregon and Vermont have state sanctuary laws, as do cities and counties in more than a dozen states, according to the Center for Immigration Studies.

One, the California Values Act, strictly limits state and local agencies from sharing information with federal officers about criminals or suspects unless they have been convicted of serious crimes. The law, which took effect Jan. 1, was the centerpiece of the State Legislature’s effort to thwart the Trump administration’s immigration policies.

Soon after the law was enacted, Thomas D. Homan, the acting director of United States Immigration and Customs Enforcement, said that the state should expect to see “a lot more deportation officers” and that elected officials who support the policy should be arrested.

“We’ve got to start charging some of these politicians with crimes,” he said. “These politicians can’t make these decisions and be held unaccountable for people dying. I mean, we need to hold these politicians accountable for their actions.”

Mr. Homan and three other immigration and border protection officials filed declarations with the suit claiming that California’s laws had already negatively affected their work.

“The administration is just angry that a state has stood up to them — one that embraces diversity and inclusivity and is the sixth-largest economy in the world thanks to the hard-working immigrants who want to become American citizens,” said Kevin de León, the leader of the California State Senate who wrote one of the sanctuary city laws named in the suit.

State lawmakers also passed the Immigrant Worker Protection Act, which prohibits local business from allowing immigration to gain access to employee records without a court order or subpoena. Mr. Becerra warned that anyone who violated the new law would face a fine of up to $10,000.

In the state budget bill, California lawmakers prohibited new contracts for immigration detention in the state and gave the state attorney general the power to monitor all state immigration detention centers.

The state and several local governments including the cities of San Francisco and Sacramento have also set up legal defense funds to help defend immigrants during deportation proceedings.

“I’m worried about the ‘Dreamers,’ hard-working immigrant families and law-abiding people who are just trying to make their way like the rest of us,” Mayor Darrell Steinberg of Sacramento said this year when asked about the state’s sanctuary legislation. “Civil disobedience is a respectful way to show your love for country.”

This lawsuit is, of course, the latest shot across the bow in a conflict between the Federal Government and states and localities regarding the enforcement of Federal immigration law and, specifically, the question of the detention of people who may or may not be in the country legally for the benefit of Federal immigration authorities. The conflict began with announcements by the Justice Department that it was cutting off certain Federal aid programs to the states related to law enforcement to states that purported to create or protect so-called “sanctuary cities” that had made the choice not to cooperate with Federal immigration authorities. It began with an Executive Order that President Trump signed in the early days of his Administration which included provisions directing the appropriate Federal agencies to issue policies to withhold grant money to states or localities that refuse to comply with Federal laws regarding the detention of suspected undocumented immigrants. This includes 8 U.S.C. s. 1373, which purports to say that a state “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” In July, Attorney General Jeff Sessions took that Executive Order a step further by announcing new restrictions that would be placed on Federal aid to such cities, and new conditions that they must meet if they want to continue receiving those funds.

This action led to lawsuits being filed against the Federal Government by Santa Clara County and San Francisco and by the City of Chicago. All three of these lawsuits raised essentially the same claims regarding the effort by the Federal Government to use Federal grant money as a cudgel to force states and localities to act in a certain manner by restricting funds that are otherwise available without condition. Suffice it to say that the Federal Government has not fared well in those lawsuits as Federal Judges in both California and Illinois have issued orders finding the Trump Executive Order and the subsequent Justice Department action to be impermissible based on principles of Federalism and on a series of Supreme Court opinions that have severely restricted the ability of the Federal Government to punish states for pursuing policies at odds with Federal law or for refusing to enforce Federal law in a given area. In both cases, the Judges in question have issued injunctions preventing the policy changes from being put into effect. Those decisions are both, of course, under appeal but the injunctions remain in effect at this time.

In this case, the Federal Government takes the existing argument into new and largely uncharted legal territory, as The Washington Post’s Amber Phillips explains

Immigration experts on both sides say this kind of lawsuit takes the sanctuary-cities debate into uncharted territory, and it’s not clear what the result will be — other than a likely escalation to the Supreme Court.

“There is real uncertainty about who will win it,” said Ilya SomAnother California law prohibits employers from letting federal immigration officials raid a workplace without a court order. There, Somin said, California isn’t specifically violating a federal law, but there is a way to interpret a Supreme Court decision that says federal immigration law generally preempts most state immigration law. “So there is no federal law which specifically says private employers must allow ICE immigration raids anytime ICE wants one,” he said.in, law professor at George Mason University.

That’s in part because the legal landscape on federal vs. state rights, especially when it comes to immigration, is a choose-your-own-adventure. Lower courts have split on whether it is legal for the federal government to require local law enforcement to hand over immigrants. There are also intersecting and sometimes contradictory laws about state rights and immigration.

The Justice Department argues that California is violating the Constitution’s supremacy clause, which says that federal law is the supreme law of the land. “Federal law determines immigration policy,” Attorney General Jeff Sessions told Fox News, in an interview that will be aired Wednesday night. “The state of California is not entitled to block that activity.”

California officials counter that they have the constitutional right to govern their state as they see fit. “States and local jurisdictions have the right to determine which policies are best for their communities,” California Attorney General Xavier Becerra (D) told The Washington Post’s Matt Zapotosky on Tuesday night after the lawsuit dropped.

Jessica Vaughan, policy director at the conservative-leaning Center for Immigration Studies, said the government has a good chance to knock down California’s policies, which are some of the most defiant laws on the books.

She points to a case conservatives recently lost to prove her point. When the Supreme Court knocked down most of a controversial Arizona immigration law in 2012, the justices upheld the government’s broad authority to enforce federal immigration law. That could prove a powerful precedent in the California case by underscoring that federal law outweighs state law, Vaughan said. And that could have a chilling effect on other states that are considering laws like California’s.

I think they are very likely to succeed, ultimately, and that it will help resolve the issue of sanctuary cities once and for all,” she said.

But Somin isn’t so sure the government has a strong case.

Take one of California’s new laws, which limits what state law enforcement officials can tell federal officials about some suspected undocumented immigrants. U.S. law prohibits state governments from instructing their officials to not share immigration status with the federal government. But, Somin said, at least one court has decided that the federal law is unconstitutional, violating the 10th Amendment, which restricts the federal government’s commandeering of state and local governments.

The other risk that the Administration takes, of course, is that the courts will rule against the Trump Administration and uphold the California laws. In addition to handing the Trump Administration yet another legal loss similar to those it has seen on issues that have included all three iterations of the Muslim Travel Ban. the Administration’s efforts to ban transgender soldiers from openly serving in the military, and the President’s order to end the Deferred Action For Childhood Arrivals program. It would also likely encourage other states and localities to enact or expand upon their own sanctuary jurisdiction laws and policies. Additionally, as Phillips notes above, even if the Justice Department succeeds it doesn’t mean that the entire sanctuary city idea is a dead letter, it would simply mean that California could not enforce the three state laws at issue in the lawsuit. The outcome of this case would also not have any impact on the enforceability of the Federal Government actions that remain on hold as a result of the aforementioned orders from Federal Judges in California and Illinois.

Given the uncertain nature of the law in this area, it’s not at all easy to predict the fate of this lawsuit this early in the case. On the one hand, the Federal Government’s claim that the state laws in question violate the Constitution’s Supremacy Clause in that they are attempting to hinder the ability of a Federal agency from enforcing immigration laws. On the other hand, California’s apparent defense based on Federalism and the Tenth Amendment appears on the surface to be equally strong. Finally, as Law Professor Josh Blackmun argued last year, there is a very strong case that the underlying Federal statute requiring local law enforcement to comply with requests from Federal immigration authorities is itself unconstitutional. If that’s the case, then the Federal Government’s argument that Federal law compels the states and localities to act in a certain manner falls completely apart. If courts end up handing down rulings that reach that issue, then the Justice Department could end up regretting filing this lawsuit.

Here’s the Complaint:

United States v. California Et Al by Doug Mataconis on Scribd

FILED UNDER: Borders and Immigration, Donald Trump, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Doug, it’s a pleasure to read your analysis. First, it means I can avoid spending way too much time trying to parse legalese. And second, I didn’t think California had a chance at winning, so that’s encouraging.

    The historical comparison that came to mind was efforts in the years leading up to the Civil War to force free states to assist in the apprehension of runaway slaves. But if that has current relevance I couldn’t say.




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  2. JohnMcC says:

    @michael reynolds: Was going to reference the same issue of ‘nullification’ or ‘secession’ that the AG mentioned; borrowing from MReynolds above and Cheryl Rofer at Balloon-Juice, the best analogy is the Fugitive Slave Act.




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  3. Andy says:

    I’m glad this issue will get its day in court. IMO, the pendulum between state and federal power has been on the federal side for way too long and it needs a correction.

    It would also be good to settle on a standard for when the federal government can coerce states via federal funding, especially ex post facto.

    @michael reynolds:

    Interesting. I remember you writing quite strongly that you believed states should be made irrelevant and that they served no good purpose as independent political entities. Has immigration and the election of Trump changed your mind on this issue?




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  4. James Joyner says:

    I thought we’d done away with so-called unfunded mandates during the early days of the Newt Gingrich Congress. I’d think Trump and company would be on firmer legal ground if they’d do it in reverse—pay states who cooperate for their services vice withholding funding for states who fail to cooperate.




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  5. FYI — For some reason, the excerpt from the Washington Post article got left out before I published. I’ve fixed that.




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  6. michael reynolds says:

    @Andy:
    I believe, and have for a long time now, that states are silly as administrative districts. I think it’s absurd to have wildly different laws depending on whether you’re standing two feet one way or two feet the other. And clearly they are absurd politically, giving irrelevant states like Wyoming disproportionate power.

    And yet the country has not seen fit to rewrite the Constitution along my preferred lines. So, like everyone else in this world, I play the system we’ve got while wishing for a better system.

    FYI, I was surprised by Doug’s analysis suggesting California had a case. I did not think we did. I accept the primacy of federal law. I do not assert that California has a legal case, merely a moral one.




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  7. george says:

    @michael reynolds:

    There’s something to be said for limited states rights. Canada would have long ago split into four different countries (the west, Ontario, Quebec and the Atlantic) if it weren’t for provincial powers allowing each a certain leeway to satisfy local interests (public healthcare for instance came about because one province (Sask) decided it was a good thing, and the others followed years later. In countries as large as Canada and the United States different regions are going to have different priorities.

    The problem comes when regions are further subdivided, creating a lot of extra overhead and so on. In Canada the Maritime provinces could usefully be combined, and Saskatchewan, Manitoba and possibly Alberta as well. The same thing could be done for many of the states, creating regions that feel unified; Gatineau (in Quebec) is just across the river from Ottawa (in Ontario), but they feel very different – that’s a good place for a provincial boundary.




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  8. James Pearce says:

    It also served as a warning to Democratic lawmakers and elected officials nationwide who have enacted sanctuary policies that provide protections for undocumented immigrants.

    Chances are good that the Dems are going to misinterpret this warning. Expect big talk, small action, and ultimate capitulation because the Dems do not care that much about this issue. (Here come the downvotes!)

    I mean, they’ll show up at the church and have their picture taken with the mom seeking sanctuary, but they’re not going to propose or co-sponsor any legislation. They’re not going to push for any legal relief.

    They think the other side is as superficial and unserious as they are themselves. They can’t fathom anyone actually wanting to rip families apart or to ruin people’s lives, so it’s like a game to them. If they lose, oh well, they tried. They’ll slink back to their suburban enclaves full of cul-de-sacs and white people to watch The Chi on Showtime and feel good about themselves.

    It’s as if Van Helsing went into battle with no sharpened stakes.




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  9. michael reynolds says:

    @george:
    I can pack a few joints in my bag and fly to Colorado, and no problem. If weather forces the plane down in Idaho I can be arrested and imprisoned for up to a year. That’s an absurd situation. Equally absurd is that Idaho has the same number of senators as California.

    None of our states mean anything – they aren’t defined ethnically or culturally or economically, they are just lines drawn on a map – a map which devalues the votes of Californians and New Yorkers and Floridians while shifting power to states that don’t have enough people to scrounge up a half decent city. I can see arguments for some states rights in the abstract, but in practice states rights has been little but a dodge for getting around civil rights laws, or as a shield to protect corrupt politicians.




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  10. michael reynolds says:

    @James Pearce:
    WTF are you talking about? The states are taking action. The states and cities are passing laws and regulations. The national Democratic party is pushing DACA legislation. The Latino constituency is massively important to the Democratic Party.




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  11. @michael reynolds:

    Well, California has already won at the District Court level in the challenge to the Executive Orders released last year (the state actually ended up joining in the lawsuits filed by Santa Clara County and San Francisco), so there’s that too.

    This case ventures into somewhat uncharted waters, as I state in the post, but it seems to me that the Federal Government has an uphill battle ahead of it, even in a Supreme Court dominated by conservatives.




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  12. Gustopher says:

    There’s a huge overlap between the sanctuary states and the legal recreational pot states.

    I’m a little surprised that Sessions hasn’t ramped up federal enforcement of marijuana laws in California, to make an example of the state.




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  13. Andy says:

    @michael reynolds:

    Even if one thought it was a good idea, I don’t think it’s possible to centrally govern a diverse country of over 300 million people with a single central government. I don’t think there’s ever been a government that was able to do that. And, given the diverse political views of those 300+million Americans, the people wouldn’t stand for it.

    This country can’t exist without federalism and removing the state as the primary political unit in our system of government is impossible without destroying our existing institutions. I, for one, would not trust our current cohort of elites to build the framework for a new order.




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  14. TM01 says:

    SO could a state make it illegal for a business to open up its records to OSHA, or to even allow them onto its property, without a warrant?

    So in CA now, a business trying to fully comply with federal law will be subjected to penalties by the State?

    How exactly does that make sense?




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  15. michael reynolds says:

    @Andy:

    I, for one, would not trust our current cohort of elites to build the framework for a new order.

    And I for two would agree with you. I wouldn’t trust most of them to manage a Girls Scout cookie sale. Nevertheless, the current system gives disproportionate power to those least relevant to the future of this country, and that is a mistake.

    Whether one could competently govern a continental nation from the center in 2018 I don’t think is at all clear. I’m not sure why the nearly 40 million people of California – 16 times as many people as the original United States – can be managed, but not 100 million like some Indian states. We have telephones, internet, satellites – distance is irrelevant. Amazon can deliver virtually any product to any one of about 200 million customers in the US in 24 hours but the federal government can’t manage to keep up with basic services? I don’t believe it.

    Nor do I believe local is necessarily better. Here in Marin we have de facto if not de jure segregation, enforced (indirectly) by zoning regs that make it impossible to build more housing. NIMBYism and greed allow the rich to absolutely screw the poor. A national policy could hardly be worse. If we eliminated states and had a more representative democracy we would not have our current president, and all 50 states would be the better for it.




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  16. James Pearce says:

    @michael reynolds:

    WTF are you talking about?

    Denver stuff, mostly. Here’s a primer.

    Mayor Hancock is a member of a party that wants plausible deniability on the Sanctuary City issue — “We don’t allow our cops to cooperate with ICE hold requests, but we’re definitely not a Sanctuary City, oh no, nut-uh, no way” — as well as one that is slave to a superficial social agenda that is, and has been in the recent past, weaponized against them.

    The Latino constituency is massively important to the Democratic Party.

    I suppose that’s why the Dems boasted of record numbers of deportations during the Obama era and are now so comfortable using them as gamepieces in a political game of chicken.




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  17. michael reynolds says:

    @James Pearce:
    We’re playing chicken? Who canceled DACA? Who controls Congress. Sometimes your whataboutism is just ridiculous.




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  18. Just...cracker says:

    @James Joyner: No, we did away with unfunded mandates during Democratic administrations. This isn’t the same at all.




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  19. James Pearce says:

    @michael reynolds:

    We’re playing chicken? Who canceled DACA?

    The Keyser Soze of politics, the “man who dares,” the guy who takes all the left’s little superficial BS and throws it right back in their face, laughing at them.

    Who canceled DACA? The dude who knows that the champions of Social Justice have no fricking teeth.




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  20. wr says:

    @Andy: “Even if one thought it was a good idea, I don’t think it’s possible to centrally govern a diverse country of over 300 million people with a single central government. I don’t think there’s ever been a government that was able to do that. ”

    You might want to look at China over the last 5,000 years or so…




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  21. Tyrell says:

    No city or county should be allowed to harbor and protect violent criminals or other lawbreakers. The immigration specifically prohibits protecting and helping illegal immigrants.
    See: “What LA residents really thing of LA as a sanctuary city – Town Hall” video. Something you will not see on the maim stream news media.




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  22. Andy says:

    @wr:

    You might want to look at China over the last 5,000 years or so…

    Yes, I think China’s experience supports my thesis.

    @michael reynolds:

    Amazon can deliver virtually any product to any one of about 200 million customers in the US in 24 hours but the federal government can’t manage to keep up with basic services? I don’t believe it.

    I used to be a federal civil servant. The hiring and HR process is so bureaucratic it was almost a year from the time I applied for the job until I actually started working, and that’s just the start of the problems. It’s no wonder there are tens of thousands of vacant positions that are never filled.

    The federal government couldn’t make a working website in 3 years for a President’s signature program (healthcare.gov) and ended up costing twice the original estimate (not uncommon). Actually, look at most federal government IT efforts in the past 1-2 decades, or look at procurement, or even simple stuff like FOIA. Head over to the GAO website and weep. Federal agencies currently have a raft of problems and dysfunction – to think they can take over all the responsibilities of state and local government is…a stretch.




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  23. Tyrell says:

    @michael reynolds: No states? A novel, interesting idea. I had an England history professor who proposed the same thing.
    If that had been the case back in the 1800’s the secession and Civil War would have been extremely unlikely.
    I am not sure how the governing system would work. It seems like it would concentrate even more power in the Federal branch. And how would the Congress be elected?
    It seems that the Federal government has too much power now. Most powers are supposed to reside in the states.




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