Department of Justice Strikes Back at California's Sanctuary Laws

By Andrew R. Arthur on March 7, 2018

The Department of Justice (DOJ) filed a complaint yesterday with the U.S. District Court for the Eastern District of California against the state of California, Governor Jerry Brown, and state Attorney General Xavier Becerra. In that complaint, DOJ challenged the validity of three recently issued state sanctuary statutes: AB 450, SB 54, and AB 103.

On February 10, 2018, I wrote about "The Chilling Effect of California's 'Immigrant Worker Protection Act'", AB 450. In my June 2017 Backgrounder, "Limiting Foreign Student Visas in Sanctuaries?", I discussed the implications of SB 54.

As DOJ describes AB 103 in its complaint:

[T]he statute imposes a new set of requirements specific to facilities housing immigration detainees. In particular, [new] section 12532(a) [of the California Government Code] requires the California Attorney General or his designee "to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California."

DOJ argues that AB 450 and SB 54 "violate the Supremacy Clause [of the United States Constitution] by, among other things, constituting an obstacle to the United States' enforcement of the immigration laws and discriminating against federal immigration enforcement." That complaint asserts that SB 54 also expressly violates 8 U.S.C. ยง 1373(a) , which bars federal, state, and local entities from prohibiting or restricting "any government entity or official from sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual."

Similarly, DOJ contends in its complaint that AB 103 violates "the Supremacy Clause by, among other things, constituting an obstacle to the United States' enforcement of the immigration laws and discriminating against the United States."

Notably, DOJ argues that:

California does not require any local detention facility to comply with section 12532's heightened inspection regime when it houses detainees for other Federal or California entities. AB 103's requirements apply only when local detention facilities house federal civil immigration detainees.

AB 103 thus requires the California Attorney General to investigate the law enforcement efforts of federal agents engaged in apprehending and transferring aliens, to assess the "due process" provided to those aliens and the "circumstances around their apprehension and transfer to the facility," and to assess the law enforcement decisions of personnel under contract to the United States, as well as records of unspecified scope. The statute thus commands an improper, significant intrusion into federal enforcement of the immigration laws. California has no lawful interest in investigating federal law enforcement efforts.

As Cornell Law School's Legal Information Institute explains:

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal Constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.

Citing the Supreme Court's decision in Arizona vs. United States, DOJ argues:

Based on its enumerated powers and its constitutional power as a sovereign to control and conduct relations with foreign nations, the United States has broad authority to establish immigration laws, the execution of which the states cannot obstruct or discriminate against.

At issue in Arizona was that state's enactment of a law (SB 1070), the purpose of which, according to the Court, was to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." As a Connecticut General Assembly analysis of that law noted, SB 1070, as amended by companion legislation:

[P]rohibit[ed] state and local law enforcement from restricting the enforcement of federal immigration laws;

[R]equire[d] law enforcement, in making a lawful stop, detention, or arrest for another law, to make a reasonable attempt to determine the person's immigration status where reasonable suspicion exists that the person is not lawfully present in the country;

[C]reate[d] a new misdemeanor offense for the willful failure to complete or carry an immigrant registration document under certain circumstances;

[A]uthorize[d] a peace officer involved in enforcement related to human smuggling to lawfully stop anyone in a motor vehicle on reasonable suspicion that the person is violating a civil traffic law;

[C]reate[d] misdemeanor offenses (or felonies if 10 or more illegal immigrants are involved) for unlawfully transporting or concealing an illegal immigrant or encouraging one to enter or remain in the country illegally;

[A]uthorize[d] a peace officer to arrest a person without a warrant on probable cause that the person has committed a public offense that makes the person removable from the country;

[R]equire[d] employers to keep employee eligibility records for three years or the duration of employment, whichever is longer; [and]

[A]llowe[d] employers to raise an affirmative defense of entrapment to a charge of knowingly or intentionally employing unauthorized immigrants.

The Court concluded that three of the four provisions of that state law it reviewed were preempted by federal law, holding that: "[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," and that "[t]he Supremacy Clause gives Congress the power to preempt state law."

With respect to its claim of discrimination against the federal government, DOJ appears to be relying on the "intergovernmental immunity doctrine". In U.S. v. City of Arcata, the Ninth Circuit explained:

The doctrine of intergovernmental immunity arose from the Supreme Court's decision in McCulloch v. Maryland ... which established that "the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government." ... Courts take "a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign's legislative authority." ... A state or local law is invalid "only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals."

The circuit court, quoting the Supreme Court's decision in North Dakota v. United States, noted: "The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government." It held, however, that "ordinances [that] affect the federal government incidentally as the consequence of a broad, neutrally applicable rule" do not violate the doctrine.

Here, each of the provisions is directly targeted at federal immigration enforcement, and intended to disrupt that enforcement, in violation of the doctrine.

This complaint is just the first step in a process that will inevitably end up before the Supreme Court to assess the constitutionality of so-called "sanctuary" jurisdiction laws. DOJ has plainly decided, however, to lead with its strongest suit against the most assailable laws.