In our federal system, state and local officials cannot pick and choose which federal laws they wish to follow. However, this is exactly what is occurring as California politicians have taken increasingly overt measures to keep the federal government from deporting migrants here illegally.
While standing in the way of immigration enforcement might seem like the “right thing to do,” as Oakland Mayor Libby Schaaf put it, her warning was an affirmative act that prevented the federal government from legally arresting fugitives – many of them criminals. It’s one thing to disagree with federal law; it is another to obstruct it.
Regardless of the legal outcome, it makes sense for local officials to provide a basic level of cooperation. Not only would this help prevent criminals who are in the country illegally from preying on others, but it would also reduce the need for ICE officers to go out into the community to apprehend these individuals.
Unfortunately, heated rhetoric, like the salvos exchanged last week by U.S. Attorney General Jeff Sessions and Gov. Jerry Brown, does little to promote rational discourse. So, what are the merits of the federal government’s lawsuit against the state of California challenging three laws designed to protect individuals illegally in the U.S. from deportation by federal authorities?
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Under the U.S. Constitution, the responsibility for making and enforcing immigration laws lies with the federal government, not the state of California. Simply put, this means that when Congress enacts a law, the executive branch of the federal government has the responsibility to enforce it, in this case through U.S. Immigration and Customs Enforcement (ICE).
U.S. immigration law makes it illegal for an alien without authorization to enter or stay in the U.S. Under federal law, it is ICE’s responsibility to remove foreign citizens who are illegally present in the United States to their country of origin.
Under the U.S. Constitution’s supremacy clause, federal law prevails over state laws that conflict with or otherwise thwart the ability of federal officials to enforce federal law. This is fundamental to making our federal system work, and it is at the core of the DOJ’s lawsuit.
One of the challenged California laws requires employers to notify employees 72 hours after receiving an ICE inspection notice and subjects an employer to substantial fines for failure to do so. Yet by doing so, an employer who gives this “notice to flee” is potentially subject to a federal charge of obstructing justice.
Another, contrary to federal law, gives the California attorney general authority to access records of aliens being detained on ICE’s behalf. A third law, Senate Bill 54, prohibits local officials, principally sheriffs who run the local jails, from notifying ICE regarding release dates of convicted criminal aliens or otherwise cooperating with ICE, unless the alien has been convicted of one of a listed number of crimes.
In all likelihood, the federal courts will strike down the first two provisions, but SB 54 is a closer question. Under our federal system, although cooperation between federal and local and state authorities is the norm – indeed, our federal system would not function well without it – there is no requirement that local officials affirmatively assist the federal government in carrying out federal law.
However, regardless of the legal outcome on this point, for public safety reasons, it makes sense for local officials to provide a basic level of cooperation, such as timely notice to ICE before release of deportable, criminal aliens. Not only would this help prevent criminals who are in the country illegally from being returned back to their community to prey on others, but it would also reduce the need for ICE officers to go out into the community to apprehend these individuals.
ICE is much maligned. But Californians should keep in mind that its officers are only enforcing the laws Congress enacted. While the state has no obligation to assist ICE, under our federal system it should refrain from impeding it.
Robert C. Bonner is a former federal district judge and former commissioner of U.S. Customs and Border Protection. Reach him at firstname.lastname@example.org.