Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
The attorney general has teed up a new test to the local-state dynamic on immigration that could make its way up to the U.S. Supreme court.
Jeff Sessions has launched his most potent attack yet in his salvo against so-called “sanctuary” policies—escalating the attorney general’s ongoing war against the Golden State.
“California, we have a problem,” Sessions said Wednesday in remarks delivered in Sacramento. “Contrary to what you might hear from the lawless open borders radicals, we are not asking California, Oakland, or anyone else to enforce immigration laws...We are simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement.”
That demand has been formally lodged in a lawsuit his Department of Justice filed Tuesday in federal court that argues three California laws hinder the capacity of federal immigration authorities to capture and deport unauthorized immigrants living in the area. “These provisions are preempted by federal law and impermissibly discriminate against the United States, and therefore violate the Supremacy Clause of the United States Constitution.” the complaint states. This latest move has the potential to affect hundreds of cities and local governments across the country that have sought to limit how they assist federal immigration enforcement—loosely and sometimes-misleadingly termed “sanctuary” cities.
What could this lawsuit mean for these “sanctuary” policies in cities and states? It’s not entirely clear at this point. But if nothing else, it is likely to be another test to the local-federal balance of power on immigration that may wind its way up to the U.S. Supreme Court, legal experts say. Most at risk is likely California’s immigrant workers bill that extends protections beyond those of most other sanctuary policies.
At the heart of Tuesday’s lawsuit are complex and deeply crucial questions about the relationship between the federal government and the state—answers to which have defined the balance between local, state, and city power in America. They ask: What is the scope of government’s control over immigration? What is the extent to which state or local governments can regulate their own affairs? What are the exceptions in both cases? How the two sides approach these questions will be played out as the case works its way through the judicial pipeline.
“Essentially, what’s going to happen is that the federal government is going to argue that…anything related to anything immigration is within the field,” said Rick Su, a professor of local government and immigration law at the University of Buffalo. “And essentially, the state is going to argue, ‘You can’t read it that broadly, because the would preempt all—or too much—of the state’s regulatory sphere.’ And, ‘You should also recognize that what we’re doing here, although tangentially related to immigration is really connected to a legitimate state interest.’”
This tension between state and local has come up before—in the Obama era, the Reagan era, and all the way back before the Civil War. Most recently, it came up in Arizona v. U.S., when Arizona tried to implement an extremely stringent local immigration law
s. Several parts were struck down, but the Supreme Court affirmed the state’s ability to ask local police to collect information about immigration status. Ironically, the politics in that state-versus-federal dynamic are flipped in this lawsuit.
The DOJ, in its lawsuit, has attacked three California laws. The first is S.B. 54, which passed late last year, enraging Sessions. It limits local law enforcement from detaining, questioning, and sharing certain information about unauthorized immigrants—unless they’ve committed certain serious crimes. (Several courts have questioned the legality of holding immigrants for ICE without a warrant, prompting a rise in such laws around the country.) Next up: A.B. 103, a law that requires state oversight of conditions at immigration detention facilities in its jurisdiction and a moratorium on renting out jail beds to ICE. And third: A.B. 450, which requires that a warrant be sought for inspecting employee records and asks that employers notify staff before ICE’s workplace raids. This third law may be most susceptible to legal challenge, in part because it puts private individuals in between the state and federal tug-of-war. In addition, "a court grappling with this claim may have to decide whether it is unreasonable to expect ICE to issue a subpoena or obtain a judicial warrant," said César Cuauhtémoc García Hernández, a law professor at the University of Denver who studies the intersection of criminal and immigration law.
The DOJ lawsuit argues that these laws violate federal statutes, and cites the Constitution’s Supremacy Clause, which says that federal law trumps state law, in cases of conflict. “There is no nullification. There is no secession. Federal law is ‘the supreme law of the land,’”said Sessions, who himself is named after two leaders of the Confederacy. “I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln.”
That’s a particularly striking position, because it appears to subvert the long-held conservative embrace of state and local rights, said Hernández.
“The irony of the Trump administration’s main legal claim is remarkable,”said Hernández. “Turning back from conservative legal principles stretching back to the states’ rights era of anti-integration battles, the Justice Department is trying to force California to do what it very clearly does not want to do.”California, likewise, is taking the opposite position historically held by conservatives.
California Attorney General Xavier Becerra, who was named as a defendant in the lawsuit, responded at a press conference Wednesday by insisting that the state’s laws worked “in concert” with federal ones and that the 10th Amendment puts limits on federal power over states’ rights. “In adopting the Values Act, the State has exercised that right to define the circumstances where state and local law enforcement may participate in immigration enforcement,” Becerra said. “We’re not enacting immigration laws, we’re enacting public safety laws; We’re not getting into their business, they’re getting into our business.”