The United States just sued California. To anyone born before, say, 2016, that sentence sounds a little insane. The suit concerns the state’s “sanctuary” immigrant policies, which make it harder for the feds to go after undocumented Americans there. The Department of Justice argues this violates federal authority under the constitution. Specifically, the government claims that three state laws “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law.”
At least that’s what it’s about in name. The suit doubles as political revenge on the hippies, commies, techies, and Hollywood elites that singlehandedly cost Trump the popular vote by three million. (Or wait, wasn’t it millions of illegal votes in states such as New Hampshire that robbed him?) Note also that cities in other states such as Texas and Iowa have granted sanctuary status, but Trump hasn’t targeted them. But the choice to sue California itself is particularly dumb, because the lawsuit certainly does nothing to ingratiate the Trump administration or Republicans in general to California’s 55 electoral votes. Typical Trump: Vengeance over logic.
But still, this is an important and controversial lawsuit. So let’s see what those damn dirty hippies have done this time, and figure out whether the DOJ has a case.
There are more than 140 sanctuary cities and counties in the U.S., including New York, Chicago, and Boston. In California, San Francisco, Sacramento County, and Los Angeles are all “sanctuaries.” Many Americans, however, either don’t understand or misunderstand what “sanctuary cities” are. Part of that is branding: On both sides of the political spectrum the term signals something like “all refugees are welcome here.” The word “sanctuary” creates mental hyperlinks to “amnesty” and “asylum,” which the right wing fears and hates. (This despite the fact that Ronald Reagan granted amnesty to millions of undocumented Americans.) Conversely, lefties associate those words with kind and heroic acts, perhaps unconsciously associated with the righteous resistance of the underground railroad, harboring Jews during the holocaust, and so on.
But the term doesn’t have a consistent definition. Many areas embrace the broader definition above, but for others the term more technically refers to their refusal to comply with federal government policies that empower (and, judging by this lawsuit, require) law enforcement officials to go to lengths to target, detain, and deport undocumented people. When President Trump signed an executive order last year that stripped states of certain federal grants if they don’t enforce those policies, many states and cities quickly made it clear that they wouldn’t go along with it. Those areas are sanctuary cities.
In short, the DOJ claims California law (specifically “SB 54”) conflicts with federal laws regarding immigration enforcement. The U.S. government has ultimate jurisdiction over immigration, and federal law establishes that (stick with me here) state and local governments can’t prevent employees from sharing certain information with federal immigration officials.
The DOJ’s suit hinges on that fact, because California law now forbids local and state law enforcement from sharing with the feds certain information, such as the release dates of incarcerated immigrants or personal information about immigration status. The law also prevents local law enforcement from sending undocumented immigrants straight to the feds without a warrant. California granted an exception here, however, if the person committed serious crimes.
The DOJ also has in its sights state law that prevents private businesses and their employees from voluntarily cooperating with ICE raids. According to legal experts, there’s no federal law that compels employers to cooperate with ICE whenever they want to have a raid party. In that case, Jeff Sessions doesn’t seem to have legs to stand on.
In a larger and slightly less complicated sense, though, the whole thing is a weird political reversal on states’ rights. The federal government must respect a state’s sovereignty, meaning the state’s responsibility to care for all citizens. And yes, this includes people who live in the state who aren’t citizens. It’s a provision of the Fourteenth Amendment’s due process clause, which, it might surprise some to learn, doesn’t only protect American citizens: It says the government can’t deny “any person of life, liberty, or property without due process of law; nor to apply to any person within its jurisdiction the equal protection of the laws.”
And just a few years ago, in 2012, twenty heavily GOP states sued the federal government over President Obama’s immigration policy, which they said usurped their right to criminalize immigration and enforce those laws as they see fit. One of those cases, Arizona v. the U.S., went all the way to the Supreme Court, which ruled in the administration’s favor. The Court’s decision cites the constitution’s “supremacy clause,” which essentially says federal laws trump state laws. Now the Trump administration is using that same ruling as an instrument to go after California’s immigrant-friendly policy. At the same time, of course, the famously liberal state has swapped sides in favor of states’ rights.
If you think all this local resistance stems from lily-livered leftist politicians, it doesn’t: Many law enforcement officials, including sheriffs in notorious liberal bastions such as Texas and Polk City, Iowa, reject the policy, arguing that if anything it makes their areas less safe. In fact, the sheriffs of every major city in Texas opposed the state’s recent law requiring local law enforcement to ask people their immigration status.
These officials, which include governors, mayors, and sheriffs, say the federal policy conscripts and misallocates local police resources, already stretched thin. According to many sheriffs, this will also corrode critical but delicate relationships between local police and members of immigrant communities. After all, you can’t expect those communities to cooperate with police if they worry that local officers, acting as de facto federal agents, might break up their families or those of their friends. Additionally, in the words of one Texas sheriff, it will encourage racial profiling and, in the words of another, direct officers to “go after cooks and nannies, instead of hardened criminals.” We have ICE for a reason. Local police, these officials argue, can’t be expected to do their work for them, much less prioritize it.
But police are supposed to go after criminals, and aren’t these people criminals? I mean it’s called “illegal immigration.” Not so fast. Here’s a passage from an editorial written by that Polk City sheriff, Bill McCarthy (emphasis mine):
...the fact is that being an undocumented person in our state is not a criminal offense as defined in the Iowa Code. The proponents of this bill claim this is a technicality, but it is a fact. Moreover, and more important, it does not exist in the United States Criminal Code. While being undocumented is an administrative rule violation, local law enforcement agencies do not enforce these types of violations any more than when a person cheats on their income tax, another federal administrative rule violation. To date, Congress has not acted on this distinction.
And once more: Any person.
Sessions’ case will likely go to the Supreme Court, but a final decision isn’t clear-cut.
This the states’ rights argument: In short, California has the right to use its resources as it sees fit, and that under the constitution the administration can’t conscript state and local officials and private businesses to carry out federal policy.
But we also have to understand that the federal government does indeed have precedent over the states when it immigration policy. And though the Supreme Court seemingly held up this precedent in Arizona v. the U.S., California legislators had that case specifically in mind when they crafted these new laws. Unlike the legislators in Arizona, they didn’t directly target immigrants. Instead California focused on the federal government’s requirements that local law enforcement and businesses cooperate and share certain information with, and to a certain extent carry out the will of, federal immigration authorities. This includes reassurance to undocumented immigrants that the state won’t automatically and immediately deport them if they’re convicted of a crime.
The DOJ’s argument:
The DOJ will argue that the California laws indirectly affect immigrants to a degree significant enough to fall under the Arizona ruling. After all, the laws are clearly designed to impede the DOJ’s ability to enforce immigration law. Legal experts, however, argue that this might not be enough to fit the terms of the Arizona decision.
It will likely all come down to some combination of interpretations of the Fourteenth, Fourth, and Tenth Amendments. (The latter defines federalism: “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”). This would seem to give California a slight edge over Arizona, but it will be up to the Court to determine whether states (and private businesses) must take a further and constitutionally shakier step to fully cooperate and actively participate in the enforcement of federal immigration policy.
Which also happens to be racist as hell.