Protesters and supporters of U.S. Attorney General Jeff Sessions take to Sacramento streets
In the case of the United States vs. California, who will win?
The fight over how undocumented immigrants in California are treated is now a matter for federal courts to decide after the Trump administration this week sued the state to invalidate a trio of "sanctuary" laws.
The state argues it can’t be forced to act as a federal immigration enforcer and that its laws are necessary to protect its estimated 2.6 million undocumented residents, maintain community trust and shield its economy.
The federal government argues California’s laws go beyond non-cooperation and interfere with the federal power to regulate immigration, causing a constitutional crisis by allowing a state to meddle in foreign affairs and creating an “atmosphere of defiance” that puts federal officers at risk, according to court papers.
It’s a 10th Amendment fight with roles reversed from past fights between conservatives and liberals.
“Historically, national power has been on the side of civil rights, and states’ rights has been equated with regressive policies, racist policies,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “That’s the irony.”
Despite the passionate politics, the legal decision will rely on the merits of the arguments and past case law.
The first legal fight will come in the next few months when the federal court for the Eastern District of California is expected to rule on a preliminary injunction U.S. Attorney General Jeff Sessions is seeking.
The government has asked for a first hearing on April 5, though that may change.
If the Sacramento-based court grants that injunction in its entirety, it would block California from fully enforcing the three sanctuary laws until the case is resolved – which likely won't happen for years. Legal experts expect the case will be appealed to the 9th U.S. Circuit Court of Appeals, which has ruled against Trump's travel ban in the past, and ultimately the U.S. Supreme Court, regardless of which side prevails.
The targeted California laws are Senate Bill 54, Assembly Bill 103 and Assembly Bill 450.
It’s possible – maybe likely – the court would grant a partial injunction that doesn't knock down all three. Legal experts said each one will be reviewed separately, and the federal government faces varying odds on each.
Local law enforcement role in federal immigration
Senate Bill 54 is the state's main sanctuary law that restricts how local law enforcement interacts with federal immigration authorities. It has the best chance of withstanding the court challenge, legal scholars said.
“Here the state seems on the strongest ground, because the Congress has said the government can’t coerce states and local government,” said Chemerinsky.
Holly Cooper, director of the UC Davis immigration law clinic, said the drafters of California's sanctuary law were very careful to write it without inconsistencies or disagreements with federal law.
Sessions argued in court papers that states don't have the right to make a law that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," meaning California can't make a law simply to circumvent a federal one it doesn't like. He said SB 54 did interfere with the work of immigration officials by making their jobs harder.
But not working with federal authorities is different than actively working to thwart them, said legal experts.
“You don’t get to commandeer us and force us to be a local arm of immigration enforcement,” said Loyola Law School professor Jessica Levinson.
UC Davis School of Law Dean Kevin R. Johnson agreed, pointing out that California has the authority to decide how it treats its residents.
Can the state attorney general inspect detention facilities?
The wobbler for California in the injunction fight may be AB 103 and its provision that allows the state attorney general to conduct broad inspections of jails that house immigration detainees. That includes looking at records and conducting interviews to see if detainees were given due process and properly detained in the first place.
The state Attorney General's Office has already conducted five of those inspections, including locally at Rio Cosumnes Correctional Center in Sacramento County and the Yuba County jail.
The federal government in court papers said that states don't have the right to make laws that "regulate the United States directly." It argues that the inspections are go beyond health and safety and examine immigration policies.
That ruling, Levinson said, may come down to the details of what each side argues.
Chemerinsky said nuances make it harder to predict. For example, detainee records may be housed in a local facility, but do they belong to the federal government or the local authority? Federal records would likely be off limits to the state, but those in possession of local authorities may not be.
"A lot depends on the context and what comes up,” said Chemerinsky.
Trump's best hope: reversing private employer restrictions
The place California is weakest, said legal scholars, is AB 450, which sets restrictions on how private employers can cooperate with immigration authorities during audits of employment records. It requires employers to make sure ICE agents have judicial warrants or subpoenas before accessing employee records or entering private parts of businesses.
California has argued that the law doesn’t prevent cooperation or interfere with the audits, but instead protects the due process and privacy rights of both employers and workers.
The federal government in its court filing was dismissive of that position.
"California cannot plausibly assert that it has authority to directly prohibit the United States from entering private property with consent from the property owner," U.S. Department of Justice attorneys wrote.
Chemerinsky said California may have a harder time here convincing the judge that it isn’t setting up active roadblocks to immigration enforcement with overt action.
For a preliminary injunction to be issued, Sessions needs to prove four things: that he has a shot at winning the case if litigated; that the government will suffer “irreparable harm” if it doesn’t get the injunction; that "the balance of equities tips in its favor”; and that an injunction is in the public interest.
The federal government is bundling the three laws as causing the irreparable harm needed for the injunction and argues it’s in the public interest to put them on hold.
The federal government wrote in court papers that the laws are forcing ICE to expend greater time and resources. For example, the government's case argues it takes five ICE officers to successfully and safely arrest someone in the community, but only one officer to detain someone currently in jail.
Thomas Homan, acting director of ICE, also said in court papers that prior to SB 54, access to jails made arrests easier and more efficient for ICE.
Homan said jails, including those in Sacramento, Monterey, San Joaquin and Fresno counties, have denied ICE access to booking information since SB 54 went into effect in January. Homan said those facilities previously provided that information and lists of foreign-born inmates to ICE. Now, the jails provide only publicly available information, Homan said, and don’t let agents into secure areas.
Homan in his court declaration said "the attitudinal climate in California has fostered hostility towards" ICE and an "atmosphere of defiance, which places the safety of ICE officers and employees at risk."
Homan said incidents of assaults on ICE officers in California increased from four in fiscal 2015 to 17 in fiscal 2017, with two reported through Jan. 10 this year.
California Attorney General Xavier Becerra on Thursday reinforced the state’s position that the laws were within its rights.
"We are simply doing what the 10th Amendment allows every state to do and that’s to determine how it will provide public safety for all of its residents. We leave immigration enforcement to the federal government,” Becerra said in a statement to The Bee.
Beyond the injunction, states' rights will take center stage in the broader case, with potential implications across the country.
A similar state vs. federal power issue was decided in Arizona in 2012. In that case, the Obama administration sued the state to prevent Arizona from granting more immigration authority to local law enforcement.
The Obama administration argued the Arizona law, Senate Bill 1070, violated the U.S. Constitution and was an overreach of state powers.
“Arizona’s legislature believed the federal government wasn’t doing enough to enforce federal immigration law and struck out on its own to enforce the law by requiring registration of immigrants, making it criminal to be undocumented in the state and otherwise empowering state and local law enforcement to enforce the law,” Johnson said.
The Obama administration successfully challenged the suit, winning in both the 9th Circuit and the U.S. Supreme Court.
But the California case is different from what happened in Arizona. Levinson describes it as the "mirror image."
In Arizona, state authorities wanted more power to enforce greater immigration rules it had created – overt action superseding federal law and therefore violating the Supremacy Clause of the Constitution. California simply wants to take no action, the state is arguing.
"Basically they're saying, 'Don't cooperate with the federal government except to the extent the federal government requires you to,'" said Johnson. "California laws are designed to keep the state out of immigration enforcement."