It’s been three months since U.S. Attorney General Jeff Sessions came to Sacramento to announce his lawsuit against the State of California challenging various provisions of the new sanctuary state law.  I posted about my initial evaluation of the claims when Sessions announced the lawsuit.  Tomorrow is a big hearing in federal district court, so it’s time to check in again.

What’s been going on during the last three months?  Lots of papers have been filed.  California tried to move the case to San Francisco, but the judge said no so it will remain in Sacramento.  The United States and California have filed papers, and lots of groups and individuals have filed their own amicus curae briefs supporting one or the other side.

What’s going on to tomorrow?  Judge Mendez will hear oral argument on two motions.  The U.S. seeks a court order to block California’s sanctuary state laws and California is asking the judge to dismiss all of the United States’ claims.  The motions are flip sides of each other, each taking extreme positions about how good their claims are.  The U.S. argues that its claims are so good that the judge should grant a court order (preliminary injunction) before trial happens.  California argues that the claims are so weak that the judge should dismiss them all without having a trial at all.

California has a tough row to hoe on the motion to dismiss.  It has to prove that no set of facts could allow the U.S. to state claims.  It’s unlikely that Judge Mendez will dismiss any of the claims at this early stage.

So, the focus tomorrow will be on the U.S. motion for a preliminary injunction.  Unlike a trial, where the party just has to win, the U.S. has to show more to convince a judge to act early, and enter an order against the other side, before the judge has been able to hear all the arguments and see the evidence that would be presented at a trial.

Judge Mendez will come into the hearing very prepared.  He will have looked carefully at all the writings, researched the arguments, and will likely have pin-pointed questions to flesh out particular parts of the claims.  He likely knows how he is inclined to rule on each claim.   What?  Isn’t that pre-judging the case?  Yes, but that’s ok.  In fact, it is responsible judging.

This is not like a trial, where the jury is supposed to keep an open mind before it hears the evidence.  There may be some testimony tomorrow, and the judge should keep an open mind on that.  But most of tomorrow’s claims depend upon reading U.S. law and California law and deciding how they inter-relate.  These are complex legal questions and it is entirely appropriate that the judge would study them, think hard about them, and form initial opinions before oral argument.

The lawyers will be very prepared as well.  They wrote the pleadings and, during the last week, have undoubtedly been doing “moot court” preparations where they argue and take questions, trying to anticipate what the other side and the judge will say.

What is the standard of proof?

The U.S. needs to show (1) that it is likely to win at trial; (2) that it will suffer extraordinary harm if it must wait until trial for a court order; (3) that it will suffer more harm than California if it must wait until trial; and (4) that the public interest is on its side.

Both the U.S. and California have strong claims that they will suffer “irreparable” harm that cannot be repaired later if the court rules against them.  So, the focus of the case will be on whether the U.S. can meet its burden of showing a “likelihood of success” at trial on its claims.

What are the claims?

The basis for all three of the U.S. claims is that the California sanctuary state provisions violate the Supremacy Clause of Article VI of the Constitution.  The U.S. also claims that each provision violates what is called “inter-governmental immunities.”  This is a more difficult claim for the U.S., and so I’ll focus on the Supremacy Clause (preemption) claims as they relate to each California law.

The Supremacy Clause says that when state law conflicts with valid federal law, the federal law prevails.  No one disputes that this part of the Constitution exists, or what it says.  So what’s the big question with all three claims?  Is there a conflict or is this just another of many situations where the two different governments may regulate the same activities, but for different reasons?

California’s “Immigrant Worker Protection Act” (IWPA).  This law prohibits private employers from voluntarily complying with federal immigration enforcement requests for information. This means that the federal agents need to get a court order to obtain the information.  There is nothing explicit in the federal law that says California cannot do this. So, the question is whether the state law “frustrates the purpose” or “stands as an obstacle to enforcement” of federal law.  Maybe … or even, quite likely it does.  California has very good reasons for its law, but that is not the right question when the federal government claims preemption.  The focus is on what the federal government validly wants to achieve and whether the state law makes it systematically more difficult no matter the state’s strong interests.  Private California employers are citizens of the state and of the United States.  Expect to see the U.S. make the point that it should be able to seek voluntary compliance from its citizens on the same terms as the state, and the state effort to shift that balance unconstitutionally obstructs its lawful exercise of its powers.

California Assembly Bill (AB) 103.  This law allows California Attorney General Xavier Becerra to inspect immigration detention facilities to make sure they are being operated lawfully.  California has the power to do this and has a strong interest in making sure confinement conditions and other aspects of detention meet state and federal standards.  The U.S. claim that California is targeting it specifically is not particularly strong.  California can reasonably claim that its interest is in immigration facilities and what occurs in them, which pose particular issues that make them different from other types of facilities, and so it is targeting the type of facility not the federal government that operates them.  California does not obstruct federal law enforcement if it only imposes reasonable ministerial requirements that are similar to what it imposes on other entities that rent and operate other types of facilities.  It is not clear from the papers how the inspections work in practice.  Expect to see questions that go to the burden of the inspections on immigration enforcement officials, and that compare these burdens with inspection burdens imposed on other types of facilities.

California Senate Bill (SB) 54.  This law limits state and local law enforcements’ abilities to give certain types of information about current and former state prisoners to immigration enforcement officials.  The U.S. preemption claim is the weakest here, because, unlike with private employers, California has the superior power to direct the activities of state and local law enforcement.  The U.S. cannot constitutionally require state and local officials to assist with its immigration enforcement efforts.  Expect questions to the U.S. about what valid law entitles it to the information it seeks.  If the judge were to dismiss a claim tomorrow (which, as I said is unlikely), this would be it.

What happens after the hearing?

The judge can grant an order stopping enforcement of all, or single parts of the sanctuary law.  That is, the judge can accept all, some, or none of the U.S.’s claims.  Also, the judge can rule from the bench, meaning a court order goes into effect right away.  Or, more likely, the judge can take the claims “under submission,” and issue a ruling, along with a written opinion explaining his reasoning, later, in a few days or weeks.

After a ruling, we can expect the losing side to file an appeal.  The losing side will likely seek another court order, this time from the Ninth Circuit Court of Appeals, either granting an order stopping the California laws or stopping an order by the judge stopping California laws, whichever way the ruling goes.  A three-judge panel of the court of appeals will schedule argument.  We have already waited three months for this oral argument, so it is unlikely that the court of appeals would hear the appeal as an emergency.  More likely, argument would be within a few months.  After that, the losing party will likely try to convince the U.S. Supreme Court to accept the case and issue a ruling.  If the Court agrees, that ruling would likely not be issued until June 2019, at the earliest.

For more details, see Dean Vik Amar’s analysis in Verdict.