The United States suit against California is not the first time the federal government has sued a state, but it is the only time I can think of where such a suit was brought against a state government that was trying to do more to protect the rights of its residents.
Typically, the U.S. government has sued a state to enforce civil rights, such as the Obama administration’s litigation against Georgia to protect students with disabilities and against North Carolina for discriminating against transgender students. In fact, throughout American history, “states’ rights” have been invoked as an excuse for state governments to have slavery or maintain segregation or resist federal civil rights laws.
Now, though, federalism has been turned on its head and it is California invoking states’ rights to protect its residents from the Trump administration’s repressive federal immigration policies. It is ironic to see conservatives who for so long have championed states’ rights now embracing federal power.
The suit filed by the Justice Department concerns three different California laws. The Trump administration claims that each statute is preempted by federal law because it impedes federal immigration enforcement efforts.
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One statute being challenged is the California Values Act, which prevents state and local agencies in California from sharing information with federal immigration officers about criminals or suspects unless they have been convicted of serious crimes. In other words, cities in California are not allowed to tell Immigrations and Customs Enforcement about people in their jails until and unless there has been a conviction for a serious crime.
Astoundingly, after this was enacted, Thomas D. Homan, the acting director of United States Immigration and Customs Enforcement, said that the state elected officials who support the policy should be arrested. “We’ve got to start charging some of these politicians with crimes,” he said.
Under Supreme Court precedents, this California law should be upheld. The Supreme Court has ruled that the federal government cannot coerce state and local governments to cooperate with federal mandates.
For example, in Printz v. United States in 1997, the court declared unconstitutional a provision of the federal Brady Handgun Control Act which required that state and local governments do background checks before issuing permits for firearms. The court said that this impermissibly commandeered state and local governments. Likewise, forcing state and local governments to share information is unconstitutionally coercing their actions.
A second aspect of the federal suit concerns a part of the state budget bill that gives the state attorney general the power to monitor immigration detention centers in the state. A state has no authority to monitor federal facilities.
But this is about local jails that contract with the federal government to hold detainees and private facilities that contract with the federal government. Here, California is again on strong constitutional grounds to make sure that those detained in the state are treated humanely and their rights are respected. The state is not impeding the federal government’s immigration policies when it inspects the conditions of detention facilities.
Finally, the lawsuit challenges the California Immigrant Worker Protection Act, which prohibits employers, or persons acting on behalf of the employer, from providing “voluntary consent” to the entry of an immigration enforcement agent to “any nonpublic areas of a place of labor.” The law also prohibits employers, or persons acting on behalf of the employer, from providing “voluntary consent” to an immigration enforcement agent “to access, review, or obtain the employer’s employee records.”
Employers who violate these provisions are subject to civil penalties of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation. Simply put, the law prohibits employers from allowing immigration officials into the non-public areas of workplaces or from sharing information about employees unless there is a subpoena or a warrant.
This provision is most vulnerable to challenge. The federal government has its strongest claim that the state is interfering with federal immigration enforcement. At the same time, the federal law is not compelling any action by the state or local governments.
Underlying this lawsuit are vastly different perspectives about immigration law. Donald Trump and Jeff Sessions see undocumented immigrants as dangerous criminals who must be deported. California sees people who contribute greatly to the states’ economy and views the federal policy as one that will break up families, deport Dreamers, and ruin lives.
This is a battle that will continue throughout the Trump years in the White House. The lawsuit is just the most recent chapter in this fight.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at firstname.lastname@example.org.