- On Monday, the Supreme Court denied DOJ's request that it review decisions denying (in part) preliminary injunctions of three sanctuary laws passed by the State of California, as well as denying its request that those law be declared illegal.
- The three laws are AB 450, which sets restrictions on cooperation by employers in worksite enforcement; AB 103 which places state inspection requirements on facilities in California housing immigration detainees for U.S. Immigration and Customs Enforcement; and SB 54, which limits cooperation between California state and local law enforcement officers and the Department of Homeland Security (DHS) in immigration-enforcement matters.
- DOJ's request for declaratory relief remains at the district-court level, while its request for preliminary injunctive relief has been remanded by the Ninth Circuit to the district court.
- The Supreme Court's denial of review at this stage in the litigation is not inconsistent with its orders staying preliminary injunctions of Trump administration immigration-related initiatives.
On Monday, the Supreme Court denied the government's petition for a writ of certiorari (seeking the Court's review) in U.S. v. California. Pete Wilson at NBC News explained: "The U.S. Supreme Court said Monday it will not take up a legal battle over whether local governments can declare themselves sanctuaries and refuse to help federal agents enforce immigration laws." That explanation is correct, but the full story is a bit more complicated, revealing more about the Court than it does about the facts of the case, or even its ultimate outcome.
At issue in the case are three California state laws: AB 450, which sets restrictions on cooperation by employers in worksite enforcement; AB 103 which places state inspection requirements on facilities in California housing immigration detainees for U.S. Immigration and Customs Enforcement; and SB 54, which limits cooperation between California state and local law enforcement officers and the Department of Homeland Security (DHS) in immigration-enforcement matters.
As I reported in a March 7, 2018, post captioned "Department of Justice Strikes Back at California's Sanctuary Laws":
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.
That complaint requested injunctive (both preliminary and permanent) as well as declaratory relief to block enforcement of those three laws. Specifically, DOJ argued that the restrictions on cooperation in workplace enforcement in AB 450 and the state requirements for inspection and review of detention facilities in AB 103 violated the Supremacy Clause of the U.S. Constitution, while the limitations on state and local cooperation in SB 54 violated both the Supremacy Clause and 8 U.S.C. § 1373, and therefore each was invalid as a matter of law.
Briefly, the "Supremacy Clause" (Art. VI, para. 2 of the Constitution) "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." The federal statute in question, 8 U.S.C. § 1373 bars states and localities from restricting their officials in sending information to DHS "regarding the citizenship or immigration status, lawful or unlawful, of any individual."
For these reasons, DOJ asked that the district court to declare that the provisions are invalid and to enjoin their implementation. On July 5, 2018, District Judge John Mendez issued an order denying the request for a preliminary injunction in part and granting it in part.
First, he concluded "AB 103, SB 54, and the employee notice provision of AB 450 are permissible exercises of California's sovereign power."
Second, however, he found that restrictions in AB 450 that infringed on employers' voluntary consent with respect to immigration enforcement "impermissibly discriminates against those who choose to deal with the Federal Government", and that an employment-eligibility reverification provision therein was likely preempted under the Supremacy Clause. Consequently, he enjoined those provisions as they applied to private employers.
With respect to the "voluntary consent" provision, as I have previously explained, AB 450 added new sections 7285.1 and 7285.2 to the California Government Code. The first provision states, in pertinent part:
Except as otherwise required by federal law, an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor. This section does not apply if the immigration enforcement agent provides a judicial warrant.
Violations of this provision carry a civil fine of $2,000 to $5,000 for a first offense, with fines of $5,000 to $10,000 for subsequent offenses.
The second provision, section 7285.2, states (again in pertinent part):
(1) Except as otherwise required by federal law, and except as provided in paragraph (2), an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without a subpoena or judicial warrant. This section does not prohibit an employer, or person acting on behalf of an employer, from challenging the validity of a subpoena or judicial warrant in a federal district court.
(2) This subdivision shall not apply to I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer.
Again, a violation of this provision carries a civil fine of $2,000 to $5,000 for a first offense, and fines of $5,000 to $10,000 for subsequent offenses.
As for the reverification provision, that law is new section 1019.2 in the state Labor Code, which states:
(a) Except as otherwise required by federal law, a public or private employer, or a person acting on behalf of a public or private employer, shall not reverify the employment eligibility of a current employee at a time or in a manner not required by [section 274A(b) of the Immigration and Nationality Act (INA)].
Violations of that section carry a civil penalty of $10,000.
California had moved to dismiss DOJ's complaint, and on July 9, 2018, Judge Mendez issued an order dismissing that suit in part, but denying it consistent with his July 5, 2018, order.
DOJ appealed both orders to the Ninth Circuit (California did not appeal the partial grant of DOJ's motion for injunctive relief). On April 18, 2019, the Ninth Circuit issued an opinion affirming the district court's denial of the government's motion for an injunction of AB 450 as it related to notice to employees, affirming its denial of an injunction of SB 54, and affirming its denial of the government's request for a preliminary injunction as to AB 103 in part, while reversing it in part.
Specifically, the circuit court held that new California Government Code section 12532(b)(1)(C), which was added by AB 103 and which directs the state attorney general or his designee to conduct "[a] review of the circumstances around" the apprehension of "noncitizens" housed or detained in "county, local, or private locked detention facilities" for immigration-enforcement purposes — as well as their transfer to those facilities — "both discriminates against and impermissibly burdens the federal government". On this basis, it reversed the district court's denial of the government's preliminary injunction ruling with respect to that part of AB 103, and remanded the matter to the district court.
With respect to DOJ's appeal of the July 9, 2018, district-court order dismissing its suit in part, the Ninth Circuit concluded that the order was not final (its analysis is contained in footnote 5 of its opinion), and therefore dismissed the government's appeal for lack of jurisdiction.
DOJ sought rehearing of the three-judge circuit court panel's decision by an en banc panel (in the Ninth Circuit, consisting of 11 of the circuit's 29 active judges), but that request was denied. Consequently, the department filed a request for review of the Ninth Circuit's decision with the Supreme Court, which as noted was denied.
I trust that this analysis is sufficient to prompt the reader's eyes to glaze over, but it is important to understand in the context of the Supreme Court's other rulings on immigration matters, and especially preliminary injunctions.
The initial actor in this case is the State of California, which enacted the three laws in question: AB 450, AB 103, and SB 54. DOJ sought to enjoin those provisions and have them declared illegal. As Judge Mendez noted in his July 5, 2018, order on its request for preliminary injunction: "Here ... the nature of the requested relief increases [DOJ's] burden. An order enjoining the enforcement of state laws would alter the status quo and thus qualifies as a mandatory injunction." (Emphasis added.)
As noted, DOJ's request for preliminary injunctive relief (there has been no final ruling on the injunction itself) has been denied in part, granted in part, and remanded to the district court. Meanwhile, the order denying in part and granting in part California's request to dismiss DOJ's complaint for declaratory relief (that the provisions in question are preempted by federal law and discriminate against the United States, in violation of the Supremacy Clause) is not even final at the district-court level.
Contrast this, with, for example, the Supreme Court's orders staying preliminary injunctions of the Migrant Protection Protocols (MPP or "Remain in Mexico") until the government files (and the Court rules on) a petition for review of that preliminary injunction, or of the administration's third-country transit bar to asylum, or border wall construction, or the public-charge rule. In those cases, the initial actor was the federal government (and therefore the underlying executive-branch acts were the status quo), and the preliminary injunctions prevented it from acting — until they were stayed by the Supreme Court.
As I noted with respect to the Supreme Court's MPP order on March 12 (just over three months ago, but seemingly a world away):
Remember, however, that all of this relates not to the underlying legality of MPP, but to the merits of a preliminary injunction of MPP. While the two issues are intertwined to some degree, this case demonstrates the problems and confusion that inevitably flow from the issuance of such nationwide injunctions.
This is not the way that the Supreme Court likes to do its business, or the way that the court system should work, period. Unfortunately, for parties hoping to "run out the clock" on the Trump administration, it is an effective way to block its immigration policies (temporarily, at least).
As the Center has noted:
[I]n all too many cases issuance of nationwide injunctions by U.S. District Court judges while the litigation plods onward and upward through the federal judiciary — a state of affairs that we find alarming and injurious to a judicial system, one of whose main strengths is to allow different outcomes to percolate through the district and circuit courts so that the Supreme Court may better provide constitutional and statutory guidance after reviewing a range of outcomes.
The Supreme Court's (inaction) here is different in substance, and to a degree in form. DOJ cannot file lawsuits all around the country seeking to find a compliant district-court judge to enjoin California's laws, and the federal government will suffer irreparable harm in its immigration-enforcement efforts while these provisions are on the books.
Plus, these are bad laws, virtue-signaling legislation passed with the petulance of an intemperate third-grader. Worst of all, they will force innocent future victims in the Golden State to suffer the predations of the alien criminals whom these laws shield — at least until the Supreme Court can finally rule on the issue.
And, I note, it is possible that a Joe Biden/Kamala Harris Justice Department will ultimately withdraw its complaint against California before a final decision is reached, but there are two factors that would work against such a plan.
First, there are serious federalism issues at stake that could affect future regulatory efforts under a Democratic administration. Imagine that Oklahoma decides to pass a law prohibiting its officers from assisting the EPA in climate-change lawsuits, or Utah does not like the power of the IRS in implementing a 90-percent tax bracket on its citizens and takes similar action. U.S. v. California would be bad precedent in opposing those state actions.
Second, there are political considerations for even a potential Biden administration. In question are state provisions that will aid unscrupulous employers in displacing American workers (both citizen and legal immigrant alike), and it is just a matter of time before the aforementioned innocent victims of criminal aliens who serially offend under the protection of these laws come to the fore. Certain press outlets do a good job of hiding stories about the latter, but I hear the complaints of the displaced workers, and I trust their public officials do, too.
With respect to the political repercussions of California's spiteful and counterproductive sanctuary laws, I quote Ulysses S. Grant, who stated in his first inaugural address: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."
The worst and most obnoxious of the three state laws, SB 54, was sponsored by then-State Sen. Kevin de León, who has trumpeted his leadership on the measure. He was trounced by Diane Feinstein when he ran against the octogenarian incumbent for her U.S. Senate seat the year after it passed, and he has since slunk off to the relative obscurity of running for the Los Angeles City Council. That should tell you something.
Perhaps this analysis is Pollyannaish. Of course, it is also possible that the current administration will oversee DOJ for another four years, and the underlying case will wend its way back to the Marble Palace. When and if it does, it will be on a much better record than the three decisions that have been issued thus far.
And, for those of us who cheer on the Supreme Court when it stays injunctions by activist judges of the current administration's immigration initiatives, the denial of certiorari at this stage in U.S. v. California is likely more consistent, in terms of judicial policy, than we would like to think. This is the beginning of the road, not the end. The percolation, however, has begun.