On today’s episode of The CAP·impact Podcast I talk with Professor of Law and Director of the Immigration Clinic at Western State College of Law Jennifer Koh. Professor Koh’s work at the intersection of criminal law and immigration law is prolific, so there was a lot of ground for us to cover.

One newer project that she is working on is the Orange County Justice Fund, which was formed to raise the money to ensure that immigrants that call Orange County home can have an attorney represent them in immigration proceedings, rather than have to defend themselves in immigration court. In the interview we talk about the gap in federal law that created the need for OCJF.

We also talk about California’s sanctuary state law – SB 54. The school where Professor Koh teaches as, Western State College of Law, is in Irvine, California. From Irvine, Professor Koh was able to witness first-hand a series of cities in Orange County pass ordinances stating that the city would be opting-out of enforcing that state law. We talk about what authority cities have to do that, if at all.

Last, but certainly not least, we get the opportunity to talk about what it’s like to be cited in a United State Supreme Court Decision by none other than the Notorious RBG, Justice Ruth Bader Ginsburg.

I hope you have as much fun listening to the conversation as I did having it with Professor Koh. If you are interested in keeping up with the work that Professor Koh does, there are a couple places you can find her. You can find her on Twitter @jenniferleekoh and you can also refer to her faculty page for more information about her work and research as well.

And, as always, if you enjoyed today’s conversation, please take the time to leave us a five-star rating on Apple PodcastsiTunes, Stitcher Radio and subscribe to our show wherever you listen to podcasts. All of that makes The CAP⋅impact Podcast easier to find and more accessible.

You can also get in touch with us and let us know what you thought about today’s show, the new show format, and what you think about the show generally on Facebook and Twitter. Just like CAP⋅impact on Facebook or follow @CAPimpactCA on Twitter.

The CAP⋅impact Podcast is made possible by the Capital Center for Law & Policy at McGeorge School of Law in Sacramento, California. You can learn more about the Capital Center here, and keep up with the Capital Center on Facebook and Twitter.

President Trump will address the nation tonight.  If he takes legal action, it will likely be to declare a national emergency under the National Emergencies Act of 1976.  The statute gives him wide leeway to decide what circumstances constitute an emergency.  He will declare the emergency to take advantage of two additional statutes, 10 USC 2808 and 33 USC 2293, which would allow him to reallocate Department of Defense construction funds to build the wall.

Congress is the nation’s lawmaker, and is the one responsible for allocating funds to complete projects like the wall.  These statutes allow the president to bypass Congress and reallocate funds that Congress has already appropriated, so long as those funds remain uncommitted to other projects.  To use these statutes, the emergency the president declares must “require the use of armed forces,” so expect him to make that case in his speech as well.

For more details, see Professor Chesney’s Lawfare post.

I also spoke about this on KFBK earlier today and I’ll update this post with the link to that conversation when they have it posted on their website.

The deadline for Governor Jerry Brown to sign or veto bills has come and passed so there are now no more bills in legislative limbo. This is the final rundown of how the bills we looked at this year fared.

Assembly Bills

  • AB 186: Controlled substances: overdose prevention program – Vetoed
  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Signed into law
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Signed into law
  • AB 2780: Family Law: support orders – Signed into law

Senate Bills

  • SB 320: Medication abortion at public universities – Vetoed
  • SB 822: Net Neutrality – Signed into law
  • SB 901: Wildfires – Signed into law
  • SB 906: Mental health service, peer support specialist certification – Vetoed.
  • SB 923: Criminal investigations: eyewitness identification – Signed into law
  • SB 1004: Mental Health Services Act: prevention and early intervention – Signed into law
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Signed into law

So, now that the Governor has finished acting on legislation that makes the final count 4 bills dead in the Legislature, 9 bills signed into law by Governor Jerry Brown, and 2 vetoed bills.

Another week has gone by, and Governor Brown has worked his way through more bills that were sent to his desk in the flurry of activity that came at the end of session. Governor Brown acted on three of bills that we followed this year. All three of those bills – AB 1436, AB 2551, and SB 901 – were signed into law. I’ve also added in SB 923 from this week’s episode of In Session.

Assembly Bills

  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Signed into law
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Signed into law

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 822: Net Neutrality – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – signed into law
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 923: Criminal investigations: eyewitness identification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

For those of you keeping score at home, that’s now 3 bills that Governor Brown has signed into law, 6 dead before reaching the Governor, and 5 waiting for the Governor to either sign, veto, or pocket sign them.

On today’s episode of The The CAP·impact Podcast, we talk with Lexi Howard (JD ’15) and Erinn Ryberg (JD ’13) – two McGeorge alumna – who worked to kill AB 638, a bill that would have outlawed immigration consultants in California.

We go over what immigration consultants do, where they fit in the immigration law ecosystem, the actual problem that AB 638 was trying to fix, and why ultimately the bill needed to be killed.

As always, if you enjoyed today’s episode, please take the time to leave us a five-star rating on iTunes, Apple Podcasts, or Stitcher Radio, and subscribe to our show wherever you listen to podcasts. All of that helps other people find the show.

You can stay in touch with us and let us know what you think about the show on Facebook and Twitter. Just like CAP impact on Facebook or follow @CAPimpactCA on Twitter.

And last but not least, you can learn more about the Capital Center for Law and Policy at McGeorge School of Law here.

Another week has gone by, and Governor Brown has worked his way through more bills that were sent to his desk in the flurry of activity that came at the end of session. I’ve also added in a few more bills to this list, updating it with bills that have been discussed on In Session, and a bill we’ll be talking about on tomorrow’s episode of The CAP⋅impact Podcast.

Assembly Bills

  • AB 638: Immigration consultants – Dead, died on the Senate floor (13 Ayes, 17 Noes)
  • AB 931: Use of force by peace officers – Dead, held in Senate Rules Committee.
  • AB 1436: Suicide prevention training – Enrolled, awaiting final action from the Governor
  • AB 1784: Pilot program for support services for resource families – Dead, held on Suspense file in Senate Appropriations. Will be revived next session.
  • AB 1971: Reform of the Lanterman-Petris-Short Act – Dead, ordered to inactive file by coauthor
  • AB 2018: Loan forgiveness program for public mental health professionals – Dead, held on Suspense File in Senate Appropriations
  • AB 2551: Forestry and fire prevention – Enrolled, awaiting final action from the Governor

Senate Bills

  • SB 320: Medication abortion at public universities – Enrolled, awaiting final action from the Governor
  • SB 822: Net Neutrality – Enrolled, awaiting final action from the Governor
  • SB 901: Wildfires – Enrolled, awaiting final action from the Governor
  • SB 906: Mental health service, peer support specialist certification – Enrolled, awaiting final action from the Governor
  • SB 1004: Mental Health Services Act: prevention and early intervention – Enrolled, awaiting final action from the Governor
  • SB 1113: Mental health in the workplace: voluntary standards – Signed into law by Governor Brown
  • SB 1421: Public access to police records – Enrolled, awaiting final action from the Governor

For those of you keeping score at home, that leaves us with an updated count of 1 bill signed into law, 6 dead before reaching the Governor, and 8 waiting for Governor Brown to either sign, veto, or pocket sign them.

 

 

 

Yesterday, California Attorney General Xavier Becerra joined twenty other state Attorneys General in signing a letter demanding that the U.S. Department of Justice, led by U.S. Attorney General Jeff Sessions, “end its new ‘zero tolerance’ immigration policy which separates children from their parents.”

This action comes short of Attorney General Becerra’s more common course of action, which has been to sue the Trump administration over policies that California does not agree with. Under Attorney General Becerra, California has initiated or joined a lawsuit against the Trump administration nearly three dozen times, according to CALmatters. Seven of those lawsuits relate to immigration policy.

A facility called Casa San Diego, operated by Southwest Key Programs, in El Cajon, California houses children who were separated from their parents at the border. The San Diego Union Tribune reports that, “According to staff there, about 10 percent of the children held in Casa San Diego were separated from their parents at the border.”

So it is a little surprising that Becerra has only signed on to a strongly worded letter rather than sue, especially given the reporting by Ginger Johnson with ProPublica and by Franco Ordoñez and Anita Kumar with McClatchy. ProPublica has some of the first audio to come out of a government facility in Texas housing children who were separated from their parents at the border. McClatchy reported that “the Trump administration has likely lost track of nearly 6,000 unaccompanied migrant children.”

It is possible that a lawsuit to change the policy won’t be necessary, per this tweet from Politico’s Christopher Cadelago.

Legislation would certainly be helpful on this front, especially given that what is in Trump’s executive order is yet to be seen. Dara Lind with Vox points out that “There is no law that requires immigrant families to be separated.” Vicki Gonzalez with KCRA reports that Congress is working to reach a solution this week. One bill addressing the issue is Sen. Dianne Feinstein’s (D – California) Keep Families Together Act currently has the support of 49 U.S. Senators, including Feinstein’s fellow California Senator, Kamala Harris.

 

 

 

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.

 

 

 

President Trump announced on Wednesday, April 4th that he planned to deploy the National Guard to patrol the U.S. – Mexican border to prevent illegal immigration. California Governor Jerry Brown, who is in charge of overseeing the deployment of National Guard troops in California, agreed to cooperate.

But why the request from the Trump administration to increase the number of troops on the border? The number of apprehensions at the U.S. border is at the lowest it has been in over 17 years. The Trump Administration believes that this number will increase in the future. Further, former Presidents George W. Bush and Obama both deployed troops to the border to enforce immigration, but at varied amounts of personnel, with the overall number of agents increasing dramatically since 1995.

The Trump Administration did not initially release any specifics about the number of troops, deployment times, or costs with Homeland Security Secretary Kirstjen Nielsen stating, “I don’t want to get ahead of the governors. This is a partnership with them.”

California has 55 border patrol officers assisting in the prevention of illegal drugs and Governor Brown on Wednesday April 10th, announced that he would send an additional 400 National Guard members to patrol the border in response to President Trump’s announcement.

However, Governor Brown wrote in a letter to Homeland Security Secretary Kirstjen Nielsen and Defense Secretary James N. Mattis. “This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws… Here are the facts: there is no massive wave of immigrants pouring into California. Overall immigration apprehensions on the border last year were as low as they’ve been in nearly 50 years (and 85 percent of the apprehensions occurred outside of California).”

President Trump himself tweeted: “California Governor Jerry Brown is doing the right thing and sending the National Guard to the Border. Thank you Jerry, good move for the safety of our Country!” Early Tuesday April 17th, President Trump changed his tune and criticized Governor Brown’s handling of the situation.

When asked about the disagreement, Governor Brown commented “Trying to stop drug smuggling, human trafficking and guns going to Mexico, to the cartels, that sounds to me like fighting crime. Trying to catch some desperate mothers and children or unaccompanied minors coming from Central America, that sounds like something else.” However, he announced that they were very close to an agreement about the National Guard troops to be sent.