I appeared earlier this week on KCRA with Mike Luery to talk about the lawsuit that Attorney General Jeff Sessions has against California over three “sanctuary jurisdiction” laws that were passed by the California Legislature last year.

The three laws in question are SB 54, AB 450, and AB 103.

The lawsuit asks a federal district court to define the line between federal and state power under the U.S. Constitution.  Some things are undisputed.  These are:  (1) The federal government has exclusive authority to make and enforce immigration laws. (2) Federal government agents, like ICE agents, have the constitutional authority to enter states and enforce immigration laws against people within the state’s jurisdiction.  And, (3) valid federal law is supreme over state laws that conflict with it.  At the same time, (4) the federal government does not have the constitutional authority to require state agents to enforce federal law.  It may offer inducements, like money or other favors, but it cannot command state officials to do its bidding. And, (5) states, like California, have their own sovereign power to make laws for purposes other than immigration enforcement, specifically to protect the health, safety and welfare of all of their residents.

Here, California’s listed purposes for the three laws in question are to promote health, safety and welfare, not to regulate immigration, although a purpose is quite clearly not to assist with federal government immigration enforcement.  The question for courts will be whether the effects of these laws go beyond regulating the behavior of state and local officials, entities, and individuals lawfully subject to the state’s control into the unconstitutional arena of affirmatively impeding federal immigration enforcement.

As to SB 54, this law prohibits state and local officials from providing some types assistance to ICE enforcement agents, which they are not, by law, required to provide.  States, not the federal government, have the power to direct the behavior of state and local officials.  To the extent that the State of California is only saying don’t help beyond what the law requires, that direction should be okay.

AB 450 deals with Immigration and Customs Enforcement (ICE) going into workplaces in California to identify undocumented immigrants. The requirements in AB 450 make ICE do what the law requires it do. That is, have an appropriate warrant and give appropriate notice before ICE comes in to a workplace.  California employers are validly subject to California laws designed to protect the privacy of workers and ensure safe and efficient workplaces.  It’s not clear that ICE has a right superior to California’s policy judgment to get the voluntary cooperation of employers with immigration enforcement.  The constitutionality of this provision will depend upon how courts view the California provision – as part of a valid state effort not to assist federal enforcement or as an affirmative obstacle.

AB 103 might be on the shakiest grounds, I think. It requires California’s Attorney General, or his or her designee, to inspect federal detention centers, including records.  California’s argument that it is protecting the integrity of leased detention facilities of all types within the state is substantial.  Nevertheless, if I had to choose the most vulnerable provision, it would probably be this one to the extent that California officials are going into federal facilities and overseeing how the federal government does things.

Of course, there are a plethora of other opinions about this new lawsuit. There were two opinions featured on this blog a few days ago. Neither of those opinions matches mine perfectly. Maura Dolan of the Los Angeles Times talked to half a dozen law professors from all over California, all of whom have varying opinions about which aspects of the three laws may or may not be constitutional. The San Francisco Chronicle also spoke to law professors for their takes on the lawsuit.

While the range of opinions on which aspects of the three “sanctuary” laws vary widely, there does seem to be a consensus of opinion on one aspect the lawsuit, that this will be settled by the U.S. Supreme Court.

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