Judge Orrick Rules Section 1373 Is Unconstitutional

Does California get its own immigration policy?

By Andrew R. Arthur on October 10, 2018

In an order filed October 5, 2018, Judge William H. Orrick III of the U.S. District Court for the Northern District of California held that the Department of Justice (DOJ) could not prevent state and local governments that have adopted "sanctuary city" statutes and ordinances from receiving federal grants under the Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") program. As part of that order, Judge Orrick declared 8 U.S.C. § 1373 unconstitutional. That order raises many questions, not the least of which is whether California (generally) and other localities have the authority to adopt their own immigration policies, independent of the Immigration and Nationality Act (INA).

As he explained in his order, in FY 2017 DOJ announced that applicants for Byrne JAG grants would have to, among other things, certify their compliance with section 1373, "a statute which prohibits state and local governments from restricting information-sharing with the Department of Homeland Security" (DHS).

As my colleague, David North reported in August 2010, prior to taking the bench, Judge Orrick was the head of DOJ's Civil Division's Office of Immigration Litigation (OIL), having been named to that position shortly before the publication of that post. As North stated that that time:

[OIL] has 310 lawyers and 100 or so support staff. They argue the government's position on immigration matters in various federal courts.

If OIL thinks someone should be deported, they usually are, and if OIL drops the case, the alien stays in the country.

This raises the question of why then-Deputy Assistant Attorney General Orrick did not recognize the unconstitutionality of section 1373 when he was at OIL, but that is merely an aside.

I previously wrote about Judge Orrick and section 1373 in an April 2017 post. As I stated therein:

The referenced section of the federal code, 8 U.S.C. § 1373, states:

(a) In general-- Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) Additional authority of government entities-- Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to respond to inquiries-- The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

On its face, this is a fairly benign provision: Localities, states, and the federal government regularly work together to enforce our nation's laws. The enactment of this provision reflects the fact that, as the Supreme Court has ruled:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations.

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.

In his decision, Judge Orrick held that section 1373 is unconstitutional under the Tenth Amendment's anti-commandeering principle. Amendment X to the U.S. constitution states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

As the Supreme Court has recently explained that amendment in Murphy v. NCAA:

The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States. When the original States declared their independence, they claimed the powers inherent in sovereignty — in the words of the Declaration of Independence, the authority "to do all ... Acts and Things which Independent States may of right do. "The Constitution limited but did not abolish the sovereign powers of the States, which retained "a residuary and inviolable sovereignty." ... Thus, both the Federal Government and the States wield sovereign powers, and that is why our system of government is said to be one of "dual sovereignty."


The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.

Murphy, which involved a federal statute that prevented states from legalizing sports betting and repealing state laws prohibiting it, was relied heavily on by Judge Orrick in his decision. As he stated:

Murphy provided a non-exhaustive set of three policy reasons that make adhering to the anticommandeering principle important. First, the principle is "one of the Constitution's structural protections of liberty," dividing federal and state authority "for the protection of individuals." ... Second, it "promotes political accountability" against the backdrop that voters are unable to place credit or blame when the roles of the State and Congress are blurred. ... Finally, it prevents the federal government from "shifting the costs of regulation to the States."

Much of Judge Orrick's analysis of section 1373 in accordance with these policy reasons involved DOJ's interpretation of section 1373. He explains:

DOJ argues that Section 1373 requires states and local governments to allow the disclosure of an immigrant's address, location information, release date, date of birth, familial status, contact information, and any other information that would help federal immigration officials perform their duties.

Later on in his decision, however, Judge Orrick expressly rejects that interpretation stating:

I agree with the other district courts that found Section 1373 would support only a narrow interpretation that extends to "information strictly pertaining to immigration status (i.e. what one's immigration status is)."

In determining that "[s]ection 1373 contravenes the idea that liberty is best served by the constitution's intended division of 'authority between Federal and state governments for the protection of individuals,'" Judge Orrick held that to comply with DOJ's interpretation of that section:

California and San Francisco would need to submit control of their own officials' communications to the Federal government and forgo passing laws contrary to Section 1373. They would also need to allocate their limited law enforcement resources to exchange information with the federal government whenever requested instead of to the essential services (like enforcing generally applicable criminal laws) they believe would most benefit their respective communities.

As a review of section 1373 above reveals, however, it does not mandate the sharing of information, but rather prohibits restrictions on the sharing of information. Respectfully, the state and local enforcement of restrictions on such sharing is likely more onerous than the voluntary sharing that section 1373 seeks to encourage. But again, Judge Orrick later rejects DOJ's interpretation of that provision.

He continues:

As DOJ interprets Section 1373 today, the statute requires communications by state and local governments in ways that create an appearance of a uniform federal/state/local immigration enforcement policy indiscernible to San Francisco or California residents. ... Section 1373 effectively "supplants local control of local officers" by prohibiting those jurisdictions from preventing employees from communicating with the INS. The statute undermines existing state and local policies and strips local policy makers of the power to decide for themselves whether to communicate with INS.

Again as an aside, one would expect a judge who was the head of the OIL in 2010 to know that INS has not existed since March 1, 2003, a point that U.S. Citizenship and Immigration Services (USCIS) goes to great pains to explain on its website. Regrettably, however, the statutory language has not changed, so Judge Orrick likely deserves a pass on this one.

His analysis raises the larger question, however, of whether California and San Francisco can adopt their own immigration-enforcement policies.

There is a good reason for a uniform rule as relates to the immigration of foreign nationals to the United States. Simply put, by and large there are few restrictions preventing the movement within the United States of persons. It is all well and good that California seeks to protect its criminals from being identified by the United States government. The problem is that those criminals can easily move to one of the other 49 states, and pose a danger to the citizens thereof.

Lest you think that I am unfairly judging the potential criminality of prior offenders, I am not. I believe in redemption as much as, if not more than, most. As the Government Accountability Office (GAO) found in its March 2011 report captioned "Criminal Alien Statistics, Information on Incarcerations, Arrests, and Costs", however: "Based on our random sample, GAO estimates that the criminal aliens had an average of 7 arrests." Simply put, criminals commit crimes, and the fact that one jurisdiction countenances one crime does not mean that other jurisdictions should bear the burden of future criminality.

This is not simply one pundit's opinion, but rather a principle that Congress has enshrined in the INA, which contains grounds of both inadmissibility and deportability for aliens with criminal records. Section 1373 exists to effectuate Congress' intent in those provisions, and to prevent the frustration of them by the representatives of any individual state or locality. The need for that rule is proven by the laws and ordinances passed by the plaintiffs in that case.

The fact that California, of all states, fails to understand these principles is baffling. Having lived on both coasts, I have driven through a significant number of the United States (plural). Normally, the fact that I am crossing one state border into another is only evidenced by a billboard that welcomes me to that state.

The only time I have ever been stopped at a checkpoint entering a state? California, twice, the two times I attempted entry by land: once in Needles, and once (I believe) in Truckee. As the California Department of Food and Agriculture Plant Health & Pest Prevention Services website states:

California's Border Protection Stations (BPS) are the first line of defense in our pest exclusion efforts. At these stations, vehicles are inspected for commodities infested with invasive species. California established its first agricultural inspection stations in the early 1920s. Today there are 16 of these facilities located on the major highways entering the State (see interactive map). At these stations, vehicles and commodities are checked to ensure they are pest free and meet all regulatory requirements.

The Golden State understands the importance of protecting its (admittedly critical) agricultural industry from threats to that industry. It is curious that it is not equally vigilant about protecting the rest of the country from those aliens in the state who have previously committed crimes.

Again, in any event, Judge Orrick supports the need for a distinction between federal (on the one hand) and state and local immigration-enforcement policies by reference to the opinions of various individuals "that entanglement with federal immigration enforcement erodes the trust that Latino and undocumented immigrant communities have in local law enforcement, which is essential for victims and witnesses to feel they can safely report crimes." He continues:

The harm that entanglement with immigration enforcement does to community trust is more than theoretical, as plaintiffs and amici have shown. To summarize just one study, the fear of police inquiring into immigration status results in a lower likelihood that Latinos will report being a victim or witnessing crimes by 44 percent, undocumented immigrants by 70 percent, and even U.S.-born Latinos by 28 percent.

As my colleagues Dan Cadman and Jessica Vaughan effectively argued in their December 2016 report captioned "Tackling Sanctuaries", however:

Cooperation with immigration enforcement has not been shown to undermine community trust nor cause immigrants to refrain from reporting crimes; there are better ways to address issues of access to police assistance without obstructing enforcement.

They continue:

One of the most common reasons offered for non-cooperation policies is that they are needed so that immigrants will have no fear of being turned over for deportation when they report crimes. This frequently heard claim has never been substantiated, and in fact has been refuted by a number of reputable studies. Not a shred of evidence of a "chilling effect" on immigrant crime reporting when local police cooperate with ICE exists in federal or local government or police data or independent academic research.

It is important to remember that crime reporting can be a problem in any place, and is not confined to any one segment of the population. In fact, most crimes are not reported, regardless of the victim's immigration status or ethnicity. According to the Bureau of Justice Statistics (BJS), in 2015, only 47 percent of violent victimizations, 55 percent of serious violent victimizations, were reported to police. In 2015, the percentage of property victimizations reported to police was just 35 percent. These rates have been unaffected, either by changes in the level of interaction between local and federal enforcement from 2009-2012 (which coincides with the implementation of the Secure Communities biometric matching program) or by the spread of sanctuary policies since 2014.

Data from BJS show no meaningful differences among ethnic groups in crime reporting. Overall, Hispanics are slightly more likely to report crimes than other groups. Hispanic females, especially, are slightly more likely than white females and more likely than Hispanic and non-Hispanic males to report violent crimes. This is consistent with academic surveys finding Hispanic females to be more trusting of police than other groups.

It is not clear from Judge Orrick's decision whether DOJ presented such evidence. If they failed to, however, that is their error.

He continues:

Finally, Section 1373 shifts a portion of immigration enforcement costs onto the States. ... It compels state and local governments not to prohibit their employees from communicating with federal immigration officials. California's law enforcement agencies experienced double the detainer requests from ICE in one year — from 15,000 in fiscal year 2016 to 30,000 in fiscal year 2017. ... According to DOJ's broad interpretation of Section 1373, San Francisco and California must respond to each request, including release dates, no matter the burden on the law enforcement agencies or the length of the person's detainment term.

There is a slight disconnect between two of the statements made by Judge Orrick above that a review of the decision as a whole does not resolve. The first is that section 1373 "compels state and local governments not to prohibit their employees from communicating with federal immigration officials." That is plainly true from the face the statute. The second is:

According to DOJ's broad interpretation of Section 1373, San Francisco and California must respond to each request, including release dates, no matter the burden on the law enforcement agencies or the length of the person's detainment term.

I will take Judge Orrick at his word that this is the demand made by DOJ under its interpretation of section 1373. That would go more to how the statute is applied, however, rather than the constitutionality of the statute itself.

That said, however, this assertion raises the issue of the cost effectiveness of removing a criminal alien from the streets. Remember, according to GAO, criminal aliens have an average of seven arrests. This means that for every criminal alien who was not taken into the custody of U.S. Immigration and Customs Enforcement (ICE) and removed, local authorities and local expenditures will have to be deployed to investigate, incarcerate, prosecute, and imprison that individual repeatedly. Respectfully, responding to an ICE request for that individual the first time is probably much cheaper than the costs associated with this cycle.

And, of course, not all the costs are economic. As I have explained in many other posts (most tragically in my February 2018 post "MS-13 and Sex Trafficking"), most alien criminals prey on the communities in which they live, which are generally immigrant communities. The population of individuals that is purportedly protected the most by "sanctuary policies" is usually the one that bears the most significant burden. Or, as I stated therein:

Congress has crafted a fairly intricate system of benefits, punishments, and rewards to effectuate its immigration policy. Unfortunately, all too often state and local politicians (some well-meaning, and some craven) interfere and attempt to disrupt that system to prevent it from functioning as it should, bending it instead to further their own political agendas.

In the end, it is often the most vulnerable who suffer from those efforts.

And, in the end, it will likely be the Supreme Court that resolves the constitutionality of section 1373.

Topics: California