California and the Court




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.

Live from Classroom A McGeorge School of Law, Prof. Josh Blackman discussing the new sanctuary jurisdiction lawsuit against California.

Posted by McGeorge Capital Center for Law & Policy on Wednesday, March 7, 2018

Last night, news broke that U.S. Attorney General Jeff Sessions and the U.S. Department of Justice are suing the state of California, Governor Jerry Brown, and California Attorney General Xavier Becerra over California’s sanctuary jurisdiction policies.

Prior to the development, the Federalist Society had lined up Professor Josh Blackman from Southern Texas College of Law to speak at McGeorge School of Law on the topic of President Trump’s travel ban. The new lawsuit derailed those plans, and he instead spoke about the lawsuit.

There are three California bills that are at play in the case: SB 54, AB 450, and AB 103. The common theme in the lawsuit with these three pieces of California legislation is the issue of preemption and whether or not these pieces of legislation interfere with federal law in ways that would create preemption issues.

That is where today’s two speaker, Prof. Blackman and McGeorge’s own Professor Clark Kelso differed. Enjoy the video of their conversation and the questions that are asked of them afterwards!




California Attorney General Xavier Becerra has filed a total of 22 lawsuits in 17 different subject areas against the Trump administration.

The Sacramento Bee compiled a list of all the pending cases, along with quick summaries of each, and arranged them by subject matter. You can find links to the many complaints filed by California Attorney General Xavier Becerra below.

For more of my takes on these issues, you can refer back to my previous post on the Attorney General’s lawsuit over birth control exemptions.




It looks like Justice Anthony Kennedy will provide the key vote again, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued today in the U.S. Supreme Court.  The case pits a cake baker’s free speech claim against the state’s efforts to provide equal access to goods and services regardless of the customer’s sexual orientation.  Listen as two McGeorge School of Law professors, Larry Levine and John Sims, talk about Justice Anthony Kennedy, and his LGBT civil rights legacy on the Supreme Court.




In December, the Court will hear argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  A cake baker claims that a Colorado civil rights law, which requires him, as a merchant serving the public, to provide his product on a nondiscriminatory basis to gay people for their weddings, unconstitutionally compels him to speak.  A decision in favor of the cake baker would restrict the ability of California and California cities to enforce similar nondiscrimination laws.

President Trump’s appointee, Justice Gorsuch, likely provided the fourth vote to grant review in the case. The Trump Administration has filed an amicus brief arguing that the Court should interpret the Constitution in the way the baker suggests.

Recently, in the Take Care blog, Yale Law School Professor Robert Post reviews the Department of Justice’s brief in light of free speech doctrine.  The DOJ’s key claim is that creating a cake should be constitutionally protected at the same level as core political speech. So, because the Constitution forbids the government to compel a child to engage in the expressive action of saluting the flag, the Court should interpret it to forbid the state to compel a custom cake baker to make a cake to be used at an “expressive” event, such as a gay wedding.  Dean Post responds:

If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings—furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.

Any such conclusion would … rip the guts out of any effort to establish equality in the commercial marketplace.”

You can read Professor Post’s full commentary on Take Care.






California is one of seven states that bans assault weapons, which are semi-automatic, military-style weapons with features that make them easy to conceal, and easy to fire multiple rounds of ammunition continuously. The National Rifle Association (NRA) is in the process of filing a series of lawsuits challenging the most recent assault weapon restrictions passed by the California Legislature in 2016 (AB 1135 and SB 880).  A petition for review currently pending in the U.S. Supreme Court is of high interest to Californians because it asks the Court to accept the same arguments made by the NRA in its constitutional challenge to California’s new assault weapons restrictions.

The petition currently pending at the U.S. Supreme Court requests that it accept review of the Fourth Circuit Court of Appeals’ en banc decision upholding Maryland’s assault weapons ban – Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc). Gun owners and dealers argue that because certain types of prohibited assault weapons, specifically the AR-15 and AK-47, are “popular” choices for self-defense, the Constitution’s Second Amendment prohibits states from banning them.


AR-15 Assault rifle


AK-47 Assault Rifle






The challengers ask the Court to interpret the Constitution to mean that “[t]he individual – and not the government – retains the right to choose from among common arms those that they believe will best protect their person, family, and home.”  Pet. For Writ of Cert. at 3.  This interpretation of the Constitution, if adopted by the Court, could dramatically restrict the power of California’s citizens, and the citizens of other states, through their legislatures, to limit the availability of weapons they determine to pose particular dangers of misuse.  These weapons include guns or accessories with rapid-fire or other assault features that have been commonly used in mass shootings, including the most recent Las Vegas tragedy.

The Court has discretion to accept or refuse review of lower court decisions. Since its two  decisions in 2008 and 2010 interpreting the Second Amendment to protect an individual’s right to possess a gun in the home for self-defense, the Court has not agreed to review challenges to gun restrictions. Only Justices Thomas and Gorsuch seem inclined to review and strike down gun restrictions in the short term, complaining in a dissent last term about the Court’s “treatment of the Second Amendment as a disfavored right.” Peruta v. California, 582 U.S. (2017).

The challengers in the pending case, Kolbe v. Hogan, filed their petition for review on July 21, 2017. West Virginia, joined by twenty other states, filed an amicus brief supporting the request for review. The State’s response is due on October 10, 2017. Once all the briefs are in, the Court will discuss the petition at a Friday conference and decide whether to grant review.

For more information on:

Assault weapon laws, federal and state: Law Center to Prevent Gun Violence – Assault Weapons

Gun laws generally, state by state: Reuters Gun laws in the US, state by state – interactive

A history of the AR-15 and AK-47: New York Times “Tools of Modern Terror” by C.J. Chivers

Want more information?  Check out our In Briefs.




Welcome to our In Brief series. In these posts and podcasts, we break down the key concepts in the day’s news and quickly explain why it matters to Californians.


Political Question Doctrine

Today, the U.S. Supreme Court heard oral arguments in Gill v. Whitford, in which a three-judge district court held that in drawing the state’s voting lines after the 2000 census, the Wisconsin Legislature engaged in unconstitutional partisan gerrymandering.

California is one of the few states to delegate the task of district line-drawing to a commission independent of the state legislature.  The California Redistricting Commission (CRC) filed an amicus curiae brief in the Gill v. Whitford case which, according to its press release, “focuses on the viability of non-partisan criteria and independent redistricting processes as alternatives to partisan districting.”

You can see a preview of the arguments on SCOTUSblog by Amy Howe, and recaps of today’s oral arguments in the Los Angeles Times by David Savage or on SCOTUSblog by Amy Howe. You can also listen to my interview with Beth Ruyak on Capitol Public Radio’s Insight  where I give my overview of Gill v. Whitford as well as other cases on the Supreme Court’s docket for this term.

Want more information?  Check out our In Brief podcasts.