California Forum

The constitutional question California and Jeff Sessions are really fighting about

Last week, the Trump administration sued California over its “sanctuary policies” for undocumented immigrants. In a rare visit to California, Attorney General Jeff Sessions announced the lawsuit in Sacramento, denouncing state and local leaders for endorsing what he characterized “open borders” and emphasizing the specter of crime as justifying the Trump administration’s legal challenges to three laws.

Talking like a politician preaching to his base, Sessions seemed woefully out of touch with the immigration realities of California and of the legitimate state interests in protecting its residents. The truth is that the laws, and the legal challenge against them, raise serious legal issues concerning the rights and responsibilities of the state vis-a-vis the federal government in the realm of immigration and immigrants.

Over the first year of the Trump presidency, the federal government has been at war with many state governments, including California’s, over the administration’s tough immigration policies. In this latest battle, the administration claims that three California laws violate the Supremacy Clause of the U.S. Constitution and intrude on the federal power to regulate immigration:

▪  Senate Bill 54, the “California Values Act,” which limits the ability of state and local law enforcement, except as required by federal law, to provide the U.S. government with information about individuals in custody or to transfer them to federal custody without the necessary documentation.

▪  Assembly Bill 103, which requires the California attorney general to take steps to review the use of state, local, and private detention facilities for federal immigrant detention, and to report to the Legislature on that detention.

▪  Assembly Bill 450, the Immigrant Worker Protection Act, which prohibits employers in California from, except as required by federal law, voluntarily cooperating with federal immigration officers.

The thrust of the U.S. government’s legal claim is that the California laws violate the Supremacy Clause of the U.S. Constitution – and its dictate that federal law is supreme – by obstructing the federal government’s ability to enforce the U.S. immigration laws. The government relies on the Supreme Court’s 2012 decision in Arizona v. United States, which held that core provisions of Arizona’s immigration enforcement law, known as SB 1070, intruded on the federal government’s exclusive power to admit and deport noncitizens.

The laws challenged by the administration in United States v. California are very different than Arizona’s SB 1070; they are designed to keep the Golden State at arms length from the federal government’s immigration enforcement efforts.

Under the Tenth Amendment, states as independent sovereigns have some degree of autonomy and cannot be “commandeered” by the federal government. The case raises legal issues that go to the core of American federalism and warrants sober and thoughtful reflection, not the cartoonish attacks that Sessions leveled at them.

It is no surprise that California officials – including Gov. Jerry Brown, Attorney General Xavier Becerra and Senate President Pro Tem Kevin de León – have denounced the lawsuit. They see the state as having valid interests in protecting all of its residents, and hope to distance California from the Trump administration’s aggressive immigration enforcement efforts that have generated incredible fear in immigrant communities.

We can debate the wisdom of the California laws, and argue about the constitutionality of the measures. But we should recognize the complex legal issues underlying the laws and the legal challenges to them, which pit the state’s rights and responsibilities to residents under the Constitution against the awesome (and exclusive) immigration power of the U.S. government.

Kevin R. Johnson is dean of the UC Davis School of Law. Reach him at

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