Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
The Department of Justice is already suing California over its refusal to cooperate with federal immigration enforcement. Now, some small California cities are mounting an attack from within.
The federal government’s attack on California’s “sanctuary state” laws is growing angry, grassroots heads.
After California moved to prevent state and local law enforcement from cooperating with federal immigration officials in October, Governor Jerry Brown and Attorney General Xavier Bacerra were met with swift retaliation from Attorney General Jeff Sessions, who sued them and the state, alleging that three of the state’s new laws (including Senate Bill 54) overstepped their rights as a state and violated the US Constitution’s Supremacy Clause. (It's the same argument the Department of Justice makes in another suit it filed against California this week, over jurisdiction in sales of federal land.) But while California officials await their days in court, a new resistance is being mounted from within.
In March, the small city of Los Alamitos was the first to announce that they would put their commitment to federal law over state regulations, drafting an ordinance that would let them opt out of state-level sanctuary laws. Emboldened, other cities in Orange and San Diego Counties are drafting exemption ordinances of their own. They’re the conservative mirror to the wave of liberal sanctuary cities like West Palm Beach, Fla., and Dallas County, Tex., that have pushed back against their conservative home state’s strict immigration enforcement.
Los Alamitos mayor Troy Edgar explained the reasoning behind the city’s vote: “The way sanctuary laws pass is that they conflict with the U.S. constitution, and specifically with our oaths of office to uphold and support the constitution,” he said. Edgar’s ordinance exempts the city from California’s SB 54 law, and in March, the Los Alamitos city council voted for it 4-1. Yet California Governor Jerry Brown insists that, “This bill does not prevent or prohibit Immigration and Customs Enforcement or the Department of Homeland Security from doing their own work in any way,” it just limits the level of cooperation the state has to provide—especially in deporting immigrants who face no criminal charges.
A 71 percent white, suburban Southern California city, Los Alamitos swings slightly more conservatively than others in the deep blue state: 44 percent of voters there voted for Trump in 2016, while 46 percent backed Clinton. “Half of our city is a U.S. military base, and we have a lot of folks who are either retired veterans or are currently serving that are amongst us,” said Edgar. “Our residents are constantly complaining about the overreach of the state.” (Of course, not all of Los Alamitos’ residents are for the legislation: at the city council meeting where Edgar raised the ordinance, a long-time resident told the LA Times it was a “politically charged move which does not reflect all the Los Alamitos residents.”)
As a California Charter City, Los Alamitos can pass local laws that provide clarification to state law, giving it more power to exempt itself from state policies its constituents protest. Not all small cities can move as aggressively, but in the days after Edgar announced his legislation, he says he’s fielded calls from interested parties across the Golden State. Huntington Beach city councilman Travis Allen says his city’s plans to opt out were brewing even before Los Alamitos’ announcement. (Huntington Beach has charter powers, too.) And Buena Park, Upland, Fullerton, and Costa Mesa will be raising similar legislation in upcoming city council meetings, according to their representatives.
Aliso Viejo Mayor Dave Harrington knows that without charter city designation, the city can’t exempt itself fully—instead, he’s preparing a more symbolic resolution. “It’s kind of an affirmation of our desire to uphold the U.S. Constitution first, and then the California state law,” he said. His council will vote on the resolution on April 4th.
Many of these opposing cities are located within Orange County, which is making its own sweeping moves. County Supervisor Michelle Steel announced a regional opt-out ordinance last week, prompting Twitter love from Donald Trump (“My Administration stands in solidarity with the brave citizens in Orange County defending their rights against California's illegal and unconstitutional Sanctuary policies,” he wrote Wednesday). The Orange County Sheriff’s department also says they will begin posting release dates of immigrants they’ve detained, which will allow ICE to more easily scoop them up once they’re free. “We are tired of the state trying to use these arguments to prevent us from keeping the citizens safe,” Orange County Board of Supervisors member Shawn Nelson told CBS.
Orange County will also ride the coattails of Sessions’ lawsuit—which rests on the unconstitutionality of SB 54, Assembly Bill 450 (the “Workplace Raid” law) and Assembly Bill 103 (the “Detention Review” law)—by filing an amicus brief to the federal case, a move the cities of Los Alamitos and Aliso Viejo are making, too. In San Diego County to the south, the entirely Republican board of supervisors will vote on whether to file its own brief on April 17, when they’ll also weigh whether to join California’s lawsuit against the administration’s proposal to ask for citizenship status on the 2020 census.
“We just thought [we’d try] a kind of belt-and-suspenders strategy,” said Edgar of Los Alamitos’ amicus brief. While the city’s local opt-out ordinance could be blocked if the state of California decided to sue, an amicus brief, once joined to a federal lawsuit, can’t be erased. “That allows us to provide a perspective on what we think will be a constitutional issue that will go to the Supreme Court,” he continued. “We wanted to make sure that there was a message that local cities within the state of California don’t agree with the direction that the state is going on this.”
Ironically, Edgar says he took inspiration to push back against his sanctuary state from Oakland Mayor Libby Schaaf, who in February informed her constituents of ICE raids in the Bay Area before they happened, saying she believed it was her “duty and moral obligation as mayor to give those families fair warning when that threat appears imminent.”
While Edgar’s approach to immigration is more hawkish—he said he would have willingly cooperated with ICE—he does see himself fitting into this pattern of mayors taking back local control. “Folks thought what she did was pretty inappropriate,” he said. “I think that definitely had an impact on people’s impressions of, wow, a mayor actually makes a difference in this process.”
These ordinances aren’t the only way cities have been able to flout state control over immigration enforcement. Last March, CityLab reported that newly released Department of Homeland Security immigration enforcement memos contained an intent to “resurrect the ‘task force model’ of 287(g),” a provision of a 1996 immigration law that allows local jurisdictions to take a more active role in immigration enforcement. Sixty jurisdictions in 20 states are currently cooperating—a number which almost doubled in 2017 —but none of them are in California.
It’s not clear whether the state of California will push back against this wave of local revolts immediately, or ever, says Rick Su, a professor of local government and immigration law at the University of Buffalo. It will be much harder for them to split their energy over a two-fronted attack from above and below. “The only question is whether or not the state is going to fight them directly by filing lawsuits against these localities, or whether or not they're going to put their effort into fighting the lawsuit against the DOJ exclusively,” he said.
Politically, it might be smart for California to come out guns blazing, Su said, but legally it could prove more effective to focus on soundly winning the DOJ lawsuit, rendering many of the city fights moot. “If they win then they use that to essentially say that these claims don't make any sense, and there’s nothing there,” he said. “Because [if it’s not ruled] unconstitutional, they would still have an obligation to follow state law.”