Supreme Court

Jeff Sessions's Flawed Lawsuit Against 'Sanctuary State' California

Immigration, federalism, and the 10th Amendment

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Gage Skidmore / Flickr.com

The Justice Department is taking California to court over its status as a so-called sanctuary state. In such places, state and local officials either won't help the federal government round up and deport undocumented immigrants or otherwise refuse to participate in the enforcement of federal immigration laws. In a speech announcing the lawsuit, Attorney General Jeff Sessions accused California of creating "an open borders system," something he denounced as "a radical, irrational idea that cannot be accepted."

Unfortunately for Sessions, his case against California appears to suffer from a significant constitutional defect.

In the complaint filed yesterday at the U.S. District Court for the Eastern District of California, the Justice Department asked the court to invalidate several California laws, including parts of the California Values Act of 2017, which stops state and local police, with certain exceptions, from providing various assistance to federal immigration authorities. Among other things, the act prohibits California police from "detaining an individual on the basis of a [federal immigration] hold request"; "transfer[ing] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with" California law; and "providing information [to federal immigration authorities] regarding a person's release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with" California law.

According to the Justice Department, those provisions violate the Supremacy Clause of the U.S. Constitution by "making it more difficult for federal immigration officers to carry out their responsibilities in California" and by "obstruct[ing] the United States' ability to enforce laws that Congress has enacted." The terms of the California Voters Act "impermissibly prohibit even the most basic cooperation with federal officials," the suit asserts. In effect, Attorney General Sessions now wants to force local police to participate in the administration of federal law.

But that would run afoul of both the 10th Amendment and Supreme Court precedent. As Justice Antonin Scalia explained in Printz v. United States (1997), "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."

At issue in Printz were certain provisions of the 1993 Brady Handgun Violence Prevention Act that directed local police to help the federal government administer its gun control scheme. The federal government argued that recalcitrant local officials should not be allowed to obstruct the implementation of that duly enacted national law. But the Supreme Court thought differently. The Brady Act provisions at issue, Justice Scalia declared, must be struck down as an unconstitutional "federal commandeering of state governments."

Jeff Sessions's case against portions of the California Values Act seems to suffer from the same constitutional failing that Scalia identified in Printz. Just as the feds may not dragoon local police into administering federal gun control laws, the feds may not dragoon local police into administering federal immigration laws.

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  1. California is about to find itself on the wrong side of a tremendous border all.

      1. You can’t make a wall without Double-U… wait, I had something for this…

        1. McDonald’s?

      2. is there where we gunsplain it for you?

    1. Lex Luthor had the right idea.

  2. Immigration is one of the few things that by default has to be dealt with federally. California can’t just open their borders to Mexico. That’s just not how it works. I think we should let anybody who wants to come here come here legally as easily as possible, but I do not buy into the full-blown “open borders” philosophy. It is just impractical.

    1. Has anyone on here promoted a full-blown open borders policy?

      1. None of the writers or editors here are honest enough to admit it. Dems running on “totally open borders and gun confiscation” would never win another election, so we have to pretend that isn’t what they want.

      2. They try to hid–oh, beaten to the punch, and by someone speaking seriously. I tink.

      3. Commenters certainly have. Anyone who starts with the premise that “It’s immoral and a violation of people’s rights to say who can and can’t move to and live in a particular place” is in fact making an argument for open borders. They just don’t use that term.

        I would also point out that anyone arguing for allowing all illegal immigrants should be allowed to stay is basically saying that all immigration law must be ignored if it can’t be repealed. In effect, they are demanding open borders as well. And Reason regularly tries to argue that we shouldn’t kick out the illegals.

        1. I’ll use the term, I’m for open-borders.

          1. Fully open borders seem like a profoundly stupid idea, but I’m ok with almost completely open borders, with restrictions on people with infectious diseases example, and other very basic restrictions.

        2. “It’s immoral and a violation of people’s rights to say who can and can’t move to and live in a particular place”

          It is. That doesn’t mean that there might not be some practical necessity for controlling borders. If you are going to have a government, it’s going to violate some people’s rights sometimes. I don’t think you can avoid that.

    2. Please read the article. There’s nothing about California opening the borders to mexico or “open borders” philosophy or really anything else you said in the article. Maybe the first sentence is relevant but everything else is shit spewed by you because you really wanted to say it.

      1. Chipper Morning Baculum|3.8.18 @ 10:54AM|#

        Has anyone on here promoted a full-blown open borders policy?

        1. nuts. wrong place.

    3. Federal government still doesn’t have the authority to compel the states to cooperate. And if they get it here, it will be extended to everything else.

    4. This California law isn’t remotely “just opening their borders to Mexico.” Keep flogging that strawman.

      1. “You can stay as long as you get past the border”

        1. Which is in practice the same exact thing.

  3. CA isn’t just not having their cops enforce federal law, they are prohibiting cooperation.

    1. not only prohibiting cooperation they are harboring a criminal and obstructing, if anyone else attempted such a thing they would be in jail

    2. Which is perfectly constitutional.

      1. Well it would be interesting what CA would say if the states around it prohibited cooperation with federal anti-gun laws.

        1. From yesterday’s article:

          ” The Immigrant Worker Protection Act prohibits private businesses from voluntarily allowing immigration enforcers without warrants or subpoenas to review employee records or to enter non-public parts of their companies”

          Imagine if AZ or TX passed a law saying that gun shops were prohibited from giving paperwork to ATF agents.

          1. “Why, that’s a declaration of war!”

            /Jerry Brown

          2. I’d like to see them give it a try.

      2. So the state threatening to use force to deter people from cooperating with federal authorities is constitutional.

        Is it okay if the Crips, the Mafia, or MS-13 uses the threat of force to deter people from cooperating with federal authorities?

        1. I think Chicago says it’s ok.

        2. They aren’t deterring “people”; they are deterring their own employees. You want to help deport people? Do it on your own time with your own resources.

    3. CA is only prohibiting the cooperation that CA is not legally required to provide in the first place. Like retention requests – these are *requests* by the Federal government to hold someone suspected of an immigration crime for a further 48 hours after the state is done with them for whatever they did to get banged up in the first place. The state has no obligation to honor those requests and this is saying that agencies can’t *choose* to do so.

      Its not saying that if the Feds come in with the right legal paperwork that said person won’t be turned over, only that if the Feds *ask* for something, they ain’t getting it.

      1. Oh but they are required to do that by federal law. The problem with that argument is that the feds own immigration law and there is a federal law that requires local LEOs to answer federal requests for information. State law can’t overrule federal law. The only way the state law can stand is if you rule the federal law unconstitutional in which case the federal law becomes invalid for all states not just CA. And the only basis for it being unconstitutional is some appeal to the 10th Amendment. But how does the reservation of rights to the states mean that the federal government has no right to regulate state behavior on a field that is exclusively federal? That is a pretty tough argument.

        Moreover, it is an argument that the state and doofuses like Root don’t even believe. If CA can prohibit its LEO’s from cooperating with ICE, then why can’t other states prohibit cooperation with the EEOC or any other federal agency? Let some state no longer cooperate with the EEOC and watch the litter of kittens Root has over that.

        1. why can’t other states prohibit cooperation with the EEOC or any other federal agency?

          Why not, indeed. Would be nice to see more states take constitutional stands against the feds.

          1. Why not is because it would be a total violation of the supremacy clause. But apparently libertarians don’t care about the rule of law anymore except when it suits them

  4. However Immigration is specifically set by the constitution as a federal manner and without the cooperation from the states, as it gets in all other issues, nullifies the federal government and the constitution. the Brady act did not have constitutional backing as in, ” shall not be infringed”

    1. Show me the part of the Constitution that gives the federal government the power to regulate immigration. Remember that naturalization is not immigration.

      1. The Supreme Court has ruled that the Congressional power to regulate naturalization, from Article 1, Section 8, includes the power to regulate immigration (see, for example, Hampton v. Mow Sun Wong, 426 U.S. 88 [1976]). It would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how, or even if, that immigrant can come into the country in the first place. Just because the Constitution lacks the word immigration does not mean that it lacks the concept of immigration.

        1. and if you don’t like their interpretation by claiming the right to naturalize does not give the right to enforce immigration then lets allow open boarders but only those who have been naturalized by congress get the full benifits and rights of the constitutions since the constitution is based on natural rights and only those who are naturalized will get its benifits

        2. No court in the history of the country has ever bought the bullshit argument Juice is making here. Moreover, not a single drafter of the Constitution nor really anyone except doofus Libertarians has ever made such a claim. It is complete and total bullshit.

      2. It’s in the same place that allows the feds to make laws when then Constitution says “shall make no law” and to infringe when the Constitution says “shall not be infringed”

        1. Legal authority and jurisdiction over a plot of dirt is the fundamental power of sovereign states.

      3. Migration. It says migration and importation of people (meaning free men and slaves) to the US is to be regulated by Congress after a temporary period of no regulation ending in 1808. It’s 2018, 210 years later my dude. It is a Federal issue.

        1. Congress also is given the exclusive power to control citizenship and alienation. The control of immigration necessarily comes with that. Moreover, the right to free travel within the states is totally inconsistent with state control over immigration. Once one state lets someone in, then no other state has the authority to prevent them from traveling to other states. So “state control of immigration” is just a misnomer for “no control of immigration”

          Of all the stupid arguments open borders people make, that the states not Congress have the power to control immigration and the borders might be the dumbest one.

      4. Chipper Morning Baculum|3.8.18 @ 10:54AM|#

        Has anyone on here promoted a full-blown open borders policy?

        1. Ever read any of Shikha Dalmia’s articles and the comment on those? Because, yeah, they have.

          1. I don’t think even she advocates for fully open borders (though I rarely read her stuff at this point, so I could have missed it). Just for very open immigration. Open borders would mean that absolutely anyone can cross the border however and whenever they want. Only anarchists are arguing for that.

            1. Okay, name one circumstance where reason has consistently held that the person should not be able to cross a border or should be deported. I have never seen one. I challenge you to find a single instance where reason actually argued for closing the border for someone. I don’t think one exists. Sure they occasionally throw out the claim “we don’t mean open borders” but their actual positions on real issues show that statement to be a complete lie.

        2. There are plenty here who play the “it is initiation of force to enforce a border” game.

          Reason writers are basically open borders, except maybe for criminals and tank invasion.

          Ask them if Americans have the right to numerically limit immigration to America of seemingly peaceful immigrants.

          I bet the answer you get, if you get a straight one, is NO.

          And I say seemingly peaceful, because Reason entirely avoids addressing the issue of the political culture of immigrants, and how it has changed and continues to change the political culture of the US toward bigger government.

          Big government voters are *NOT* peaceful.

  5. I’m all for any state being allowed to ignore any federal law. What I oppose is what Reason wants, allowing this for immigration law, but if a state tries this concerning gun control laws or Obamacare that Reason pretends to oppose, not so much.

    1. I’ll get on whichever side is on the side of freedom, whether it be the state or the federal government.

      1. So things like the rule of law and principles don’t matter as long as you get what you want. Good luck with that.

        1. Supporting whoever is going to maximize freedom seems like a pretty principled stance. And for rule of law to be legitimate, the feds need to stop making unconstitutional laws.

          1. No it really isn’t. If murdering everyone who held a position that inhibited freedom was found to enhance freedom, would you do it? If the only thing that matters is freedom, I don’t see why you wouldn’t.

          2. And there is nothing unconstitutional about immigration laws Zeb. If you don’t like the government controlling its borders, change the constitution.

            1. Of course, if you don’t like the government controlling the borders you’ll just inevitably lose your government and in it’s place will be whatever government decided to move across those non-existent borders. But hey, ignoring why borders historically exist is par for the course for libertarians.

              I like to ask that if there aren’t any borders, that where does the law of the United States end?

              1. It ends at the border but the US can’t stop people from coming here because RIGHTS!!

        2. “So things like the rule of law and principles don’t matter as long as you get what you want. Good luck with that.”

          That was the premise of the book on constitutional law Reason was pimping a few months ago.

          It’s basically the Living Constitution for Libertarians.

          Which has some justification, given that rule of law and principles *already* don’t matter if you’re trying to limit Leftist power. The Left will let *you* limit your power by the rule of law, but will not be bound by the same rule of law themselves.

          One way ceasefire is surrender
          One way rule of law is subjection
          One way civility is subservience

          It’s time to stop pretending that peace is currently possible with the Left. Until the Right shows that it will fight back *in kind*, the Left has no reason to ever give up their one way attacks.

    2. [Superintendent Chalmers yell] REASON!

    3. And how is it that you come to know the secret occult beliefs of “Reason”?

  6. Prop 187 was invalidated by the courts on the basis that immigration was a federal issue and couldn’t be enforced by the states.

    “California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits.”[21]

    https://en.wikipedia.org/wiki/ California_Proposition_187

    So, they said the voters can’t even amend the state constitution on immigration . . .

    Now the courts will tell us that the states can set their own policies on immigration, too?

    Gimmie a fuckin’ break.

    1. There are lies, then there are damn lies, then there are Reason’s immigration articles.

    2. Prop 187 didn’t attempt to make immigration law.

      It made a law about the provision of social services, saying that certain services should not be provided to illegal aliens. There was no countervailing Federal law *requiring* provision of those services to illegal aliens.

      The overturning of Prop 187 was the ruling class telling the peasants to get bent, their cute little votes don’t matter shit. They will be invaded, be taxed to provide the resources to their invaders, and take it and like it.

      So it was written. So it was done.

  7. no double standards at all:
    The 2010 Arizona law that prompted a lawsuit by the Obama administration was different because it did enact immigration laws, Becerra said.

    That law required police, while enforcing other laws, to question the immigration status of people suspected of being in the country illegally, made it a crime to harbor immigrants here illegally, and banned them from seeking work in public places. It also required immigrants to carry registration.

    The U.S. Supreme Court struck down key provisions of the law in 2012. Justice Anthony Kennedy said Arizona may have “understandable frustrations” with immigrants who are in the country illegally, but it can’t pursue policies that “undermine federal law.”

    1. It is fascinating how Root ignores the most recent relevent precedent. While the feds may not be able to “dragoon” state and local officials into helping them enforce federal laws, it would seem a state should not be able to make cooperation with the feds illegal either in the interedt if not undermining federal law.

      1. The state is making it a crime to speak with the federal government. And Root sees no issues with that. It is just fucking pathetic.

  8. So Arizona couldn’t tell its police officers to enforce immigration policies because immigration was a federal matter but California can prevent its LEO’s from cooperating because of 10th Amendment!!

    1. That’s different.

      1. All rights are reserved to the states just so long as we like what the state is doing.

  9. ‘Sanctuary State’

    When your local politicians are broadcasting alerts in order to protect deportable, illegal-alien felons, isn’t it about time to drop the scare quotes?

    1. The mask has come off. For years the open borders people swore up and down that they had no problem with deporting criminals. Now, anyone who thinks the state of California should help ensure its criminals get deported is just a racist. Immigration has always been the subject that brought out all of reason’s worst tendencies.

  10. The lawsuit doesn’t just involve this law. It also involves the law that says employers are required to assert their 4th Amendment rights and makes it a crime for private employers to cooperate with the federal government. Rights are by their nature individual. They belong to you. And the government can no more require you to assert then they can prohibit you from doing so. If California can require private parties to assert their 4th Amendment rights, then the rights belong to the state, not the individual and are not rights at all. Beyond that, people have a first amendment right to say whatever the hell they want to the government and California has no authority to prevent them.

    Root conveniently ignores that law and pretends this is just about LEOs. Reason hasn’t from what I have seen said boo about California’s attempt to claim it owns the 4th Amendment rights of its citizens and can dictate when and how they are asserted. There is no principle no matter how important or self-evident Reason will not sell out in support of open borders. What a sorry, dishonest article. Root should be ashamed if he were capable of being so.

    1. They don’t want illegal aliens to be deported under any circumstances and they don’t care if the justifications for doing so violate any principles or even make a whit of sense taken as a whole.

      1. They really don’t. It is pathetic. You cannot overstate how dishonest Reason is about this topic.

  11. Picture alt-text: I made a poopie!

  12. California Peace Officer’s Association seems to be more on the side of the federal government than on Moonbeam’s. Wise move. Who can really bail out their pensions if push comes to shove? Mexico?

  13. The lawsuit may have Constitutional issues, but there should be little to preclude using 8 U.S. Code ? 1324 – “Bringing in and harboring certain aliens” against folks like the Oakland mayor.

    (ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

    (A)

    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

    (v) (I) engages in any conspiracy to commit any of the preceding acts, or
    (II) aids or abets the commission of any of the preceding acts, shall be punished as provided in subparagraph (B).

    (B)

    (ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;

    1. yay!

      I’ve been tweeting the link to this for a couple of years now. Also see the section on inducement.

      Sanctuary cities are illegal
      The officials responsible should be prosecuted

      8 U.S. Code ? 1324 – Bringing in and harboring certain aliens
      http://bit.ly/2ErBBNQ

      1. I don’t know about that. “Harboring” is an active response like hiding someone.

        I would take her to court on that, and in the mean time file a civil rights lawsuit against her to beat on her about Oakland allowing preference of illegal aliens over legal black, white, and Chinese races for hiring.

  14. Seems like it wasn’t all that long ago that the feds were claiming immigration law was the sole purview of the federal government, and that local governments couldn’t do anything about it. Chickens roosting?

    1. Those sorts of chickens only come home to roost if you have any integrity or intellectual honesty. So, they won’t be coming home to roost for Reason or Root anytime soon.

  15. I assume California is also interested in making sure that all other Federal crimes (you know, the one’s that apply to citizens and not just non-citizens) won’t be reported or enforced either.

    Oh, wait, you mean California thinks that citizens specifically should be reported to the FedGov? Gee, it’s almost like citizenship is actually a downside in the People’s Republic of California.

    Do I get preferential treatment in California if I renounced my citizenship? It seems the answer is yes.

    1. That is an excellent point. If I get arrested for selling drugs and am a citizen, the state calls the feds and I could very well be facing federal charges as well if the feds are interested. If I am not a citizen, this law says the state cannot call the feds.

      It is as if Shika Dalmia became a mad dictator.

      1. Dalmia isn’t a mad dictator, she’s just a stupid and thoughtless girl that doesn’t give two fucks about integrity or consistency. She’s the best argument I can think of against legal immigration, but I don’t hold her against all legal immigrants the way she holds all American’s in contempt for our immigration system that allowed her to immigrate here in the first place.

        1. Dalmia loathes nearly every person in this country and most things about it. How she squares that hatred with not leaving is a mystery known only to God. I don’t think she knows or even understands why it could be a problem.

      2. And, actually, in terms of drug laws California also has installed an end run against Federal law in that arena too. That hasn’t stopped the Fed from going in and raiding pot businesses though.

  16. When Arizona imposed laws dealing with immigration that was unconstitutional because the federal government sets immigration policy. Now that California imposed laws to restrict federal immigration enforcement it’s totes states rights.

    Heads I win, tails you lose.

  17. How ’bout a sanctuary state for fetuses? Maybe one for only white people? Surely one where only men can vote.

  18. Yeah, as others have said I don’t think that is the most applicable precedent here. That case was regarding forcing local officials to enforce law and policy. That’s different from removing a bar set by the state *against* assisting with law or policy.

  19. The immigration issue is a part of a much larger issue, namely that jobs are being taken by immigrants, both legal and illegal. In Oakland for instance, black unemployment is about 15%:

    California: white, 4.4 %; black, 10.9%; Hispanic, 7.2%; Asian, 4.1%

    I will admit that Latino immigrants are better workers than “born here” citizens, but that is not a good enough reason to avoid hiring. Given that Oakland’s poor represent a racial make up of mostly black and Chinese, why are there so many businesses that can’t seem to hire blacks and Chinese? We are paying welfare to people we refuse to employ for no fault of their own.

    This is the problem of having a two tiered labor market.

  20. Except there is ONE HUGE DIFFERENCE.

    Nowhere in the Constitution do FedGov get assigned or allowed ANY authority over firearms. Nope, nowhere. They’ve usurped that faux power, and simply have not been challenged suitably on it.

    On the other hand, the Constitution does indeed, very clearly and specifically, assign FedGov, specifically the Congress, authority over immigration and naturalisation and, by extension, entry and visa and qualifications that might pertain to foreign individuals coming to the US.

    Thus using the cited case about enforcing already illegal federal gun laws to speak to the superior Federal laws (they ARE enacted persuant to our Constitutioni, therefor are the Supreme Law of the Land) is a false comparison, thus a logic fail.

    WEhen California signed up to become part of the Union, California agreed to the Cosntitution and all laws enacted persuant thereto to comprise the Supreme Law of the Land. They have no option to pick and choose which of those (constitutional) laws they would allow to bind them. Either they are part of the Union or they are not. They don’t seem to be too interested in BEING a part of it, as their utter disdain for the Second Article of Ammendment clearly demonstrates they do NOT uphol,d protect, support, defend, execute the Constitution

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