Is it Unconstitutional for States to "Discriminate" Against the Federal Government?

This is one of the questions that may well arise in Jeff Sessions' new lawsuit against California's sanctuary laws.

|The Volokh Conspiracy |

The Supremacy Clause of the Constitution requires state and local governments to obey federal law, so long as that law is within the constitutional scope of federal power. But is it unconstitutional for states to "discriminate" against the federal government by denying it assistance that may be available to private parties and state officials—even in cases where there is no specific federal law forbidding that discrimination? This issue is likely to come up in Attorney General Jeff Sessions' recently filed lawsuit against against California's sanctuary laws. One of them (HB 103) requires the state to inspect federal immigration detention facilities on its territory, even though other detention facilities are not subject to the same inspection regime. Another (SB 54) forbids state and local officials from sharing information with federal immigration officials, even though they are not categorically forbidden frm sharing it with other entities. The third (AB 450) forbids voluntary employer cooperation with federal Immigration and Customs Enforcement raids seeking to round up undocumented immigrants. Each can potentially be characterized as "discriminating" against federal agencies, even though there is no federal law specifically barring this kind of discrimination.

In a thoughtful recent post commenting on my own previous post on the Sessions lawsuit, New York University law professor Roderick Hills argues that the constitution restricts state discrimination against the federal government, though he also concludes that the boundaries of this rule are unclear, since it must be balanced against "state autonomy." Rick himself concludes that anti-discrimination rule should be applied "narrowly," and state autonomy "broadly."

In my view, there is no such antidiscrimination principle in the Constitution. There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials.

Nor are there any Supreme Court cases mandating such nondiscrimination [but see UPDATE below]. Rick cites Davis v. Michigan Department of the Treasury (1989) as a possible counterexample. But Davis does not forbid all state laws singling out the federal government in some way; it and other similar cases merely forbid discriminatory state taxation of federal officials and federal government agencies. When the states impose discriminatory taxes on the feds, they go far beyond merely denying them assistance or services. They directly seize federal assets, or those of federal employees, thus potentially making it impossible for the federal government to use its own resources to enforce federal law on the state's territory. As Chief Justice John Marshall famously put it in McCulloch v. Maryland—the best-known case restricting state taxation of federal instrumentalities—"the power to tax is the power to destroy." By contrast, discriminatory denial of services and assistance (whether that of the state governments or private entities) does not and cannot "destroy" the federal government. It just forces it to rely on its own resources to do its work.

The latter is perfectly permissible for states to do. Indeed, the idea that states have a right to deny the use of their resources to the federal government, is at the heart of the Supreme Court's anti-commandeering cases, which deny Congress the power to compel states to help enforce federal law. As Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities." Control over state and local resources is, obviously, at the heart of that independence and autonomy. Ditto for the state's power to regulate private parties within its territory, except when specifically barred by federal law or by the Constitution.

AB 103, the detention inspection bill, is a closer case than the other two sanctuary laws because it involves actual state intrusion on federally-run detention facilities, not just denial of state or private assistance. But unlike discriminatory taxes, the inspections do not seize federal assets or prevent the federal government from using the facilities in question. The inspections only pose a threat to federal operations if the inspectors find that the feds are abusing detainees or otherwise violating the law. And that in no way impedes the legitimate exercise of federal power, because federal officials have no right to engage in such illegal behavior in the first place.

Moreover, many of the detention facilities in question are actually state and local government property being used by the feds. With respect to those facilities, AB 103 is just a restriction imposed by the state on federal use of state property. The state could simply pass a law categorically banning the use of state and local facilities for federal immigration detention. If so, it can also take the less extreme step of conditioning federal use of those facilities on submission to inspection by state officials.

Even if the Constitution does restrict state discrimination against the federal government, Rick Hills suggests that laws targeting federal agencies may not be truly discriminatory if the targeting is based on something genuinely distinctive about the federal activities in question, rather than hostility to the federal government, as such. For example, he notes that AB 103 might not qualify as unconstitutional discrimination if "there [is] some reason to believe that facilities are more likely to abuse their inmates after they enter into an intergovernmental service agreement with the feds." There is in fact ample reason to believe exactly that. ICE is notorious for turning a blind eye to large-scale abuse of immigrants in its detention facilities, including sexual abuse by federal agents themselves. The agency also engages in such cruel and potentially unconstitutional detention policies as separating small children from their parents, while the latter petition for asylum in the United States. The state therefore has good reason to subject ICE-run facilities to special scrutiny that might not be necessary for other types of detention facilities.

But the court hearing the sanctuary case need not address the difficult question of how much abusive ICE behavior is enough to justify special state scrutiny if it correctly rules that the Constitution does not include any general ban on state "discrimination" against federal officials. Alternatively, it can rule that the vast and unique power of the federal government ensures that federal agents are almost never genuinely analogous to private recipients of state services. Few if any private parties have the legal right to kill, deport, tax, and imprison people, as federal officials routinely do. The feds are inherently different from private entities—and, to a lesser degree, from state and local governments, which still lack many of the unique powers enjoyed by federal officials. There is—at least in most cases—no such thing as "discrimination" against federal officials. The essence of discrimination is treating essentially similar entities differently on the basis of arbitrary or irrelevant characteristics, such as race or sex. The feds are inherently different from you and me.

Discriminatory state denial of assistance to the feds is still illegal if there is a specific federal law banning it (assuming that law is otherwise within the scope of federal power). It is even more clearly illegal if the discrimination is intended to insulate the states' own violations of the Constitution from federal scrutiny—as when southern states sought to shield Jim Crow segregation laws. Actual state seizure of federal assets is often illegal even if not discriminatory. For example, states cannot use eminent domain to condemn federally owned property, even though it could condemn otherwise identical private property for the same purposes. But nothing in the Constitution bars the kind of "discrimination" at issue in Jeff Sessions' case against California.

UPDATE: Rick Hills responds to this post here. He cites North Dakota v. United States (1990), which holds that "State law may run afoul of the Supremacy Clause in two distinct ways: the law may regulate the Government directly or discriminate against it." It also notes that this rule applies to discrimination based on the "the object's status as a government contractor or supplier." I admit I should have taken account of this case and the precedents it builds on. My mistake.

However, these cases don't ultimately change the bottom-line conclusion on this issue. North Dakota does not say that all state discrimination against federal officials violates the Supremacy Clause. Rather, the Court indicates that "the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory 'with regard to the economic burdens that result.'" Both North Dakota itself (which ultimately upheld the state regulation in question) and the precedents it cites address cases where the state either directly restricted the activities of federal officials or imposed discriminatory taxation on its private contractors or suppliers. They don't address merely withholding state services, or inspections (such as those in AB 450), that do not impose a significant "economic burden" except perhaps in cases where the inspection reveals illegal activities that the federal government has no right to engage in to begin with. It also does not extend to restrictions on private parties (such as the employers regulated by AB 103) who are not government contractors or suppliers.

Rick thinks it would be absurd to conclude that states can discriminatorily withhold services from federal officials:

Imagine that California barred federal employees from driving on state-owned roads: Is Ilya seriously contending that this selective prohibition would not violate the Supremacy clause? Or what about my original hypothetical: Suppose that state courthouses charged federal lawyers and law enforcement officers a special fee to enter state courthouses—or barred them altogether from entering. Will Ilya bite the bullet by re-affirming his position that the Supremacy clause "does not require [states] to help enforce [federal law] or to give the federal government the same services and assistance available to private parties"?

I will indeed bite this bullet! My reason is that the Constitution does not bar every conceivable hypothetical scenario where something bad might happen. It especially does not do so when there are ample alternative ways to prevent it. The federal government can easily prevent sweeping state restrictions on its agents' activities by passing laws banning them, denying federal highway funds, and so on. Moreover, states themselves are unlikely to want to sweepingly exclude all or most federal officials from their roads or other public property. On the other hand, it is desirable that the states retain the authority to engage in some discriminatory exclusion of federal officials in order to curb such abuses as ICE raiding state courthouses in order to seize suspected undocumented immigrants, thereby disrupting state legal proceedings, endangering state employees, and creating a disincentive for immigrants to testify in criminal cases. A state law barring ICE agents from entering state courthouses or subjecting them to special searches before doing so would be an entirely reasonable response to such activities. It's also worth noting that such an exclusion would not impose an "economic burden" of the sort at issue in the regulatory schemes considered by North Dakota v. United States and other similar cases.

NEXT: Short Circuit: A roundup of recent federal court decisions

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Just for laughs, I’ll pretend that we can interpret the Constitution based on the text as originally understood, subject to such amendments as may have been adopted from time to time (and the amendments would be subject in turn to the same rule of interpretation). Of course, judges will reject that idea out of hand, but it’s a fun intellectual exercise.

    Congress has power “to exercise exclusive Legislation, in all Cases whatsoever…over all places purchased by the consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”

    So if the legislature has consented to federal purchase of a site for a detention facility, Congress has exclusive legislation, meaning the states are excluded. If the state legislature didn’t consent to the purchase, then the state can, by implication, exercise at least a concurrent jurisdiction. And this would include inspections.

    Did the California legislature consent to federal purchase of these detention facilities? If so, no take-backsies unless Congress says OK. But if not…the facilities are still part of California territory and under the state’s territorial jurisdiction.

    1. If the facil;ity is actually owned by the state, then the state could certainly inspect its own facilities.

      Conversely, federal facilities are beyond state regulation.

      Private facilities are the gray area.

      1. “If the facil;ity is actually owned by the state, then the state could certainly inspect its own facilities.”

        True, but that would only apply to the actual physical facilities that belong to the state, but this law is actually not necessary for that. Their ownership of the facilities would not give them the right to inspect prisoners or federal records that might be housed at that facility.

        However, the law at issue purports to give state officials the right to inspect both detainees and ICE’s records regarding those detainees.

        1. Matthew,

          “Their ownership of the facilities would not give them the right to inspect prisoners or federal records that might be housed at that facility.”

          As Illya points out,

          “The state could simply pass a law categorically banning the use of state and local facilities for federal immigration detention. If so, it can also take the less extreme step of conditioning federal use of those facilities on submission to inspection by state officials.”

          Now, the perhaps the actual agreement for the lease of the state property might be negotiated by the feds in a way that prevents that, but, conversely, if the state has given itself sufficient leeway (subject to compliance with state law, etc.), then the state may indeed inspect prisoners and records kept at the facilities.

          Maybe it would help if you imagined this was Alabama refusing to allow state resources to be used for abusive practices by the EPA. Alabama could not actively interfere in fed activities (unless the feds are using facilities leased from the state, which would allow the state to negotiate for oversight to ensure state law is not violated) to enforce environmental laws, but they could prevent their people and resources from being commandeered by the feds.

          1. “As Illya points out,”

            I don’t think he’s right on that. Certainly, they could insist on such terms in any lease agreement when the lease is negotiated, but I don’t think that they can legislate such a requirement into existing leases.

            1. PS, The state of California almost certainly lacks the authority to mandate such terms in leases the federal government has with private property owners.

    2. “over all places purchased by the consent of the Legislature of the State in which the same shall be”

      If the Federal government buys a property in a state on the open market from a private seller, would that be with the “consent of the Legislature of the State”? The Legislature sets the laws regarding real estate transactions so if those laws didn’t forbid, or require specific legislative approval of, such sales by private parties to the Federal government, the Legislature of the State had obviously consented to such sales.

      1. Can the state prevent such transaction? If not, then claiming it was “with the consent of the legislature” makes no sense. You might as well ask whether I consented in your purchase of your house from someone else.

        It would be meaningless, unless the federal government bought the property from the state itself, or some entity the state controlled.

      2. No, I don’t think so. The clause in question was the one that created the District of Columbia. It clearly anticipates states agreeing to give up limited parts of their territory to be direct federal territory where the federal government exercises exclusive jurisdiction.

        That’s not the sort of thing you’d expect to happen passively, or by implication. An affirmative act of consent is required.

        1. Of course, in the western states, including California, there is a significant amount of federal territory that was never ceded to the states when they were created in the first place.

    3. Moot since, as the article above already notes, essentially none of these facilities have actually been purchased and erected by the Federal Government. The overwhelming majority are merely leased. (The decision to lease is part of a larger procurement strategy by the feds. Whether that strategy is actually cost-effective is an interesting question but irrelevant here.)

      Moreover, most of those facilities are leased directly from private hands. The fact that a state has not affirmatively prevented the right of private parties to lease to the government can not, I think, be taken as evidence that they have given the affirmative consent, either.

      So if the Federal government moved all these detention centers onto Army land – property that clearly was purchased with consent of the Legislature, I think your argument would successfully prevent the inspections. But I don’t see that as a successful argument outside those properties. (And the military might be a little miffed at having ICE clowns all over their training ranges.)

      1. My argument is that *if* the facility was purchased with consent of the Calif. legislature, *then* it would be immune from state inspection, and not otherwise.

        1. OK, but then your argument is irrelevant to the case at hand, because it isn’t applicable to any of the facilities in question. Might be interesting other contexts though.

          1. I added *and not otherwise,* so I was suggesting the state *could* inspect the facilities.

    4. Amusingly enough, this is one of those cases where we argue endlessly about the Constitutional minutiae where a simple legislative fix ought to resolve the issue.

    5. If we’re going to interpret the Constitution based on what is actually written- just for laughs, of course- where does Congress have any power to regulate immigration. Where does it have the power to do anything with respect to borders?

      1. In article 1, section 9. “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

        Notice that 1808 has long since passed? Congress can now prohibit the migration of people a state thinks proper to admit.

      2. As Brett points out, Article 1, section 9 is conveniently ignored by the open border people who dismiss the clause outright.

        Clearly Congress has a right to regulate immigration after 1808, so now the argument comes down to should the USA limit immigration, and if so, how much.

        1. My understanding is that Article 1, Section 9 had more to do with preventing the federal government from prohibiting the importation of new slaves prior to 1808 than with the regulation of the immigration of free persons.

          1. And the 14th Amendment originally dealt with racial discrimination. Has it been limited to that?

      3. Lots of good comments out there and don’t want to be redundant.

        But perhaps one could look to article IV, Section 4 which requires Congress to guard the states against…wait for it…”Invasion”!

        I’m pretty sure that involves borders…

    6. However CA has no authority over immigration, that is exclusive to Congress per Constitution. IOW federal law controls not State law concerning the treatment of prisoners/detainees in federal facilities. I would also note that CA should be more concerned with their own treatment of prisoners in CA prisons especially places like San Quentin, Pelican Bay, etc.

  2. Regarding AB450, I have an interpretation question.

    The law prohibits an employer from allowing ICE agents access to nonpublic areas of a place of labor.

    If the federal government rents an area for the use of ICE, and restricts access to only employees, would that qualify under the law? Meaning, could the state sue a (contracted) security guard under the statute for having allowed an ICE agent into his place of employment?

    How about if an agent rents a motel room? I would expect that would also qualify as a nonpublic area of a place of labor.

    (yes, these are absurd interpretations, but reading the text of AB450/Government Code 7285.1. (a) I don’t see why they wouldn’t apply, but IANAL).

    1. They are absurd interpretations, so the less absurd interpretation would be adopted pursuant to the usual rules of statutory interpretation. Absurd interpretations are disfavored.

  3. Americans are simultaneously citizens of both their state and their nation.

    California is interfering with the right right of California citizens to exercise their national citizenship in their ability to contract with the Federal government, in their right to report knowledge of violations of Federal immigration law, and in their ability to allow ICE to enter private property.

    Echoes of Fort Sumter…

    1. One of the early examples of states “discriminating against” the federal government was northern states not enforcing fugitive slave laws. Now with the Fugitive Slave Act of 1850 and then the K-N Act of 1854 the South did get their “wish list” but it was a Pyrrhic victory that led to the creation of the Republican Party and the election of Lincoln…be careful what you wish for!

  4. So, Ilya, it’s your contention that the State of California can forbid its residents who are United States citizens from voluntarily cooperating with the Federal government? What gives a state such draconian power over the individual, a power you deny to the Federal government?

    1. Does the state’s constitution give it such power? The reason the federal government doesn’t have such power is that the US Constitution doesn’t grant it.

      1. Yeah but that has never stopped the federal govt in the past
        fines become taxes
        abortion because of privacy listed in the Constitution
        and then there is that pesky Tenth Amendment

      2. Its a First Amendment issue, the state can’t restrict who private parties talk to. Especially businesses, because of Wickard all businesses are interstate commerce, and subject to Federal regulations and jurisdiction.

    2. I don’t see where Illya specifically addresses AB 450 and I haven’t read much else on the subject. I also have some doubts that it is (or should be) permissible for the state to forbid private parties from voluntarily cooperating with the feds. Again, I have’t thought much about it, but, on first glance, it seems problematic for the state to be able to prevent private parties (rather than their state employees, which seems fine) from cooperating.

      1. His previous article glances over that issue and decides that CA should win that too.

  5. I wonder how California intends to treat bail bondsmen who pick up someone for an out-of-state warrant, when that state will eventually release the person to ICE?

  6. Remember that this lawsuit is being tried in a California Court. So, all the Federal Government needs to do is tell the Court that it is in the process of transitioning to a different gender, or that it identifies as a different gender, and claim that the discrimination is on account of that, and the win is automatic.

    The original post, Rick Hasen’s reply, and this response are interesting, but, since they all address questions of what the law is, or ought to be, aren’t they kind of irrelevant to how this case will unfold? I mean, seriously, what does the law have to do with anything decided in California?

    1. I don’t get it. I mean, I get that you’re trying to be funny. Or clever. But I don’t get it.

  7. I don’t have a problem with states practicing civil disobedience: not assisting the Feds in enforcing federal law. Actively obstructing? That is another matter.

    1. But they’re not even practicing civil disobedience, which would require disobeying some actual existing law, which, to-date, has not happened. Congress could moot that point by passing relevant legislation but, again to-date, that has not happened.

      Agree blocking private citizens from voluntary cooperation could be view as obstruction. Of the three, that law seem seems to be the most likely to be overturned.

      1. Aiding and abetting a fugitive applies to all of the laws especially as implemented by the Oakland Mayor.

  8. Of course, suing the state is pointless to accomplish what the federal government says it wants. To get compliance, just arrest the state/local officials as accessories before the fact for every crime committed by an illegal alien. (after the crime of illegal border crossing). Toss them in the federal slammer with all the illegals until trial, and there will be far fewer obstructions to ICE. How many times would SF city counsel members turn loose a murderer if they were going to get arrested as an accessory?

    1. You can bet that the DoJ is actively scouring the books to see is there is a plausible reason to file charges against Oakland Mayor Libby Schaaf.

      1. …and not finding any, which will not prevent them from trying to use implausible reasons.

        1. @Purple Martin,

          The Oakland mayor warned individual aliens, all of whom had been ordered to leave the country and several of whom had felony confictions, about upcoming ICE raids targeted at them. In what universe is that not plausibly obstruction of justice?

          1. You ask a fair question, and I do not know the answer…we’re way away from my legal field of expertise.

            But I would suspect that the mayor would not be guilty, unless there is an affirmative duty to not disclose that information. If a client of mine is about to be arrested, I do not think there is any legal rule that prevents me from calling her up and saying, “There is a warrant for your arrest. You should expect the cops at some point today.” In fact, my understanding is that lots of lawyers call clients and say, “There is an arrest warrant for you. I’ve worked out a deal that you’ll surrender tomorrow morning at my office, or at the local police station, or whatever.” Now, if that client hears the news and decides to take off, I would hope that I would not be charged with obstruction of justice.

            Now, I am pretty sure I would not be permitted to say to that same client, “You should flee the jurisdiction of the state/country/etc., before the arrest warrant can be served.” Now, I would be actively assisting in something. But merely giving a heads-up? Unless the oath of office specifically forbids this . . .

            (And, if the oath *did* forbid it; I wonder if that part of the oath could withstand a First Amendment challenge?)

            1. ” I do not think there is any legal rule that prevents me from calling her up and saying, “There is a warrant for your arrest. You should expect the cops at some point today.”

              Ironically, by one of the Volokhs.

              Telling a friend or even a family member, “the police are coming, hide the illegal thing you’re doing,” might well be a crime, if your motive is in part to keep the person from getting caught.

              Of course, if the illegal thing is only mildly illegal (e.g., a traffic violation), you’re not likely to be heavily punished for the warning; and, especially for minor offenses, prosecutors and judges are likely to cut some slack to people who are just showing loyalty to their spouses. Still, there’s no general legal right to warn people that the police are coming, even when those people are your nearest and dearest; and it may well be a crime (such as obstruction of justice or interfering with law enforcement).

            2. If you are the person’s lawyer then no you shouldn’t be charged for providing appropriate legal advice however the Oakland Mayor is not the lawyer therefor she can be charged with obstruction of justice, aiding and abetting, etc.

          2. The Oakland mayor warned individual aliens, all of whom had been ordered to leave the country and several of whom had felony confictions, about upcoming ICE raids targeted at them.

            No, she didn’t.

            1. Yes, she did.

            2. It was more of a general warning, rather that calling up individual illegal aliens, as I understand it. But that can still be obstruction of justice when you’re warning criminals of an impending law enforcement action.

          3. Not to mention aiding and abetting a fugitive…

    2. Given your support of totalitarian policies, I assume Longtobefree is an ironic screen name.

  9. I look forward to the shoot out between the CHP and ICE+FBI when the fed deny the state inspectors access.

    1. Do you believe that either CHP or ICE+FBI will refuse to obey a duly issued order from a Federal Court?

      1. In what universe do you imagine that there will be a Federal court order authorizing State inspection of a Federal detention facility on the basis of state law.

        1. Well, such an order could happen under 28 U.S.C. ??1442(a), but I agree that it probably wouldn’t.

  10. Better that this issue is adjudicated before the fact. That is why the AG’s suing is a good idea.

    1. Agreed. And I think you make a great point…regardless of the side of this issue that you fall on; this should be decided by the courts, so all parties understand what the law actually is.

  11. State officials can’t enter federal facilities, whether owned or leased without permission or a warrant. I think that’s in the Constitution.

    They may get a state warrant, and they may even find a Federal Judge (or Magistrate) to issue a federal one, but for a Federal Judge to issue a Federal warrant to effect a questionable state law seems highly problematic. I expect admission would be refused until the matter was litigated all the way to the Supreme Court if necessary.

    I wonder what standing the State has to act on behalf of immigrants who are not US Citizens and may or may not be State Citizens. The concept of State Citizenship is somewhat unclear.

    1. That is what I would expect on behalf of the feds, However, the “resistance” may see things differently.

    2. What if the state has plausible reason to think that state laws are being violated in the facilities?

      Let’s say there are reasonable claims that ICE agents are abusing detainees? Are the agents immune? If you think so, than don’t complain about all the outrageous cases where police were protected by qualified immunity.

      IMO there is a lot of thuggery by ICE. So instead of arguing fie points of federalism, let me ask how this is to be stopped.

      1. The state may file charges against specific agents. How it gathers evidence is its problem. But here again the matter gets to be a direct confrontation between state and federal police power that is even more heavily tilted towards the feds.

      2. “Let’s say there are reasonable claims that ICE agents are abusing detainees? Are the agents immune? If you think so, than don’t complain about all the outrageous cases where police were protected by qualified immunity”

        This is imprecise. The States do not have jurisdiction to enforce laws against federal agents. If a federal agent is abusing detainees, he may well be violating federal laws and the federal Constitution. But the state cannot regulate how federal officers perform their jobs.

        In the run-of-the-mill QI case, a state (or local) police officer abuses someone, in violation of their federal rights under the 14th Amendment. That’s the point — state officers are subject to federal law through the 14th amendment and statutes passed to enforce that (principally 42 USC 1983, which provides for civil redress for violations of federal rights).

        1. “The States do not have jurisdiction to enforce laws against federal agents.”

          This is wrong. If federal agents are violating state laws when they do their job, like abusing inmates, the states can prosecute them in federal court. But the violation can’t be a necessary part of their federal duties.

          1. That depends on whether there is a federal law on the issue which would take precedent over State law on/in a federal facility. IIUC there are federal laws regarding the treatment of prisoners/detainees therefore State law has no authority over a federal prison. The same holds true for most federal vs. State issues when one is dealing with federal employees; the area is a little more gray when it comes to contractors where the federal government makes an effort to conform the contract with State law as most contractors are under State law.

            1. Federal laws governing treatment of inmates wouldn’t preempt state assault laws if the guard is acting outside the scope of their federal duties. This is why, for example, the state of Idaho was allowed to try and FBI agent who killed someone during a standoff, which they eventually declined to do.

  12. “A state law barring ICE agents from entering state courthouses or subjecting them to special searches before doing so would be an entirely reasonable response to such activities.”

    Let’s evaluate this statement assuming it is circa 1963 in Alabama and we are talking about enforcement of federal law by the FBI.

    1. If we’re going that route, let’s evaluate this statement assuming it’s pre-Civil War Wisconsis, that the federal government is trying to enforce the Fugitive Slave Act, and Wisconsin is resisting.

      1. (Alternatively, we could recognize that federalism is a tool which can be used for various purposes, good or ill, and that it all depends on the circumstances. But that’s not as fun as our approach of finding egregious abuses on one side or the other)

        1. The principles of federalism should not depend on the results of their exercise.

          1. I believe my point was that federalism in itself is politically neutral, it’s not a segregationist principle or an antislavery principle. Its applicability *does* depend on circumstances, but that doesn’t mean “depends on which political faction is invoking it.”

      2. Of relevance to this case, the Fugitive Slave Act also included a provision for severely fining any local official who refused help to a slave hunter. Though they did have extra constitutional backing for that in A4S2C3 that an immigration law would not.

      3. The Fugitive Slave Act was bad but it was authorized by a now repealed part of the Constitution, Article I, Section 2 [last paragraph].

        Wisconsin had no legal right to “resist”. Neither did Alabama in 1963 nor California in 2018.

        1. An adjacent provision, relating to fugitives from justice, was (until 1987) left to the states to enforce (or not).

          Thus the argument isn’t a slam dunk.

    2. We can even evaluate the statement under well-settled law. If the federal officer reasonably believes that entering the courthouse is necessary to the performance of his duty, he can enter not withstanding any state law.

  13. Perhaps Ilya has addressed this elsewhere, but it would be helpful if he would explain what is his ideal immigration enforcement regime. Otherwise, this seems like an argument in bad faith over competing state and federal demands.

    In particular, the idea that ICE agents arresting illegal immigrants in state courts is an abuse of power seems far-fetched. Federal agents are using public forums and public information to arrest illegal immigrants. They are not commandeering state resources, which seems to be Ilya’s bete noir. To avoid this “abuse”, states can instead cooperate with federal authorities to avoid the chilling effect on witnesses, crime victims, etc. (a compromise, what a novel thought!).

    Strict scrutiny provides such balancing of compelling government interests against citizens’ constitutional rights. Why can’t such balancing occur for states vs federal government? Ilya may be correct for all these arguments (heck, i’m not a lawyer!) but a lot of his writing admits that he doesn’t agree with the policy (distinct from the law) of curtailing illegal immigration. In my mind, that casts a shadow over all of his arguments.

    1. I think he’s reluctant to just come out and admit that the only immigration enforcement regime he’d approve of is “none”.

    2. I can’t speak for Ilya, but I’d like to see intelligent, reasonable immigration laws.

      Such as increasing the risks in hiring illegals so as to decrease the demand for illegal labour. If they weren’t getting jobs, they wouldn’t be here and they wouldn’t come.

    3. Somin has written before that he is in favor of open borders. He is a complete loon on immigration, although I have no idea of the merits of his arguments here.

  14. “he would explain what is his ideal immigration enforcement regime”

    Welcome to the US, here is your voter id and social security card.

    Can you please be my nanny for $5 per hour?

    1. Well, if he wants someone to be *his* “nanny,” it’ll cost a hell of a lot more than 5 bucks per hour! 🙂

      Now, if you meant that he was asking, “Can you please be my **son’s** nanny for $5 per hour?”, then maybe you have a point.

      1. Depends on if he is providing room & board for his “nanny”! 😉

  15. North Dakota v. United States is the case that the administration cited in its injunction brief, and is the lead case for the proposition that intergovernmental immunity prohibits specifically targeting the federal government and treating the federal government worse than a private party. Although the lead opinion is a plurality, a majority found the intergovernmental immunity doctrine to apply. (Justice Scalia held North Dakota didn’t discriminate on somewhat different grounds form the plurality.)

    I think that writing an opinion, even a blog post, without researching the lead case on the subject was a mistake.

    I also think the case weighs against California here. Both North Dakota v. United States and its predecessor, Washington v. United States, indicate that to pass a discrimination inquiry a state must show, among other things, that it is pursuing a clear state purpose and the impact on the federal government is incidental to this purpose and not worse than private parties.

    North Dakota v. United States makes clear that the intergovernmental immunity doctrine is a separate concept from discrimination, and it’s inquiry is made before the discrimination inquiry. I think California loses under it.

    In order to pass intergovernmental immununity, a state statute affecting the federal government must have been made for a clear state purpose.

    1. I mean, what happens when you run North Dakota through a Marks analysis? What were the narrowest grounds? Majority vs. plurality means little here. (This is a bit rhetorical, as no two people will ever reach the same conclusion under Marks.)

      1. I think there was a five-justice majority on this point. Both the 4-justice plurality and Justice Stephens agreed a state law must serve a clear state interest and not treat the federal pr government unreasonably worse than private parties. The plurality said that North Dakota’s requirement, that liquor sold in federal enclaves from non-state sources needed to be labeled for sale in federal facilities only, was closely related to preventing a black market In Liquor and didn’t unduly burden the feds, while Scalia said the law makes the feds better off. Because private parties can only use state liquor distributors while the feds can use out-of-state distributors if they label the bottoms, this extra option leaves the feds better off, the opposite of discrriminated against.

        But 5 justices said a clear state purpose was required, and all 5 said the 21stAmendment made North Dakota’s interesting in preventing a black market in liquor unimpeachable.

        The California situation is different.The Arizona case says California has no interest in immigration policy.

        1. Sorry Justice Scalia wrote the concurrence.

        2. IOW Progressives & CA (but I repeat myself) are hung on their own petard!

  16. (Cont)

    I think the Arizona case therefore controls the outcome. Arizona says that immigration is not a proper state purpose at all. Because California has been quite open that the purposes of its policies are to influence immigration practices and the inspection statute only applies to detention facilities involved in immigration, it can’t meet the state purpose prong of the intergovernmental immunity inquiry.

    I think this means that California must lose here. Because it loses before we even get to the discrimination inquiry, it doesn’t matter if the inspection burden here is comparable to inspection burdens other statutes impose on other facilities. The mere fact that California passed a statute imposing burdens on the federal government over a subject-matter that isn’t its business means the statute fails.

    And because California loses at an earlier stage of the inquiry, and the inquiry stops there, we never get to the discrimination prong. If we take the North Dakota v. United States Court at its word that intergovernmental immunity and discrimination are two distinct legal doctrines, I would suggest that the discrimination argument, however politically potent and resonant, won’t actually be legally relevant to this case’s resolution.

    The administration’s complaint invoked both doctrines.

    1. Exactly. It would be absurd for the courts to hold that the Supremacy Clause bars a state from passing laws to allow its officers to enforce federal law (as in AZ v US) but allows a state to pass laws to forbid its officers from enforcing federal law.

      1. That wasn’t the holding in Arizona. Arizona laws which allow its officials to enforce Federal law are perfectly fine under the Constitution and SCOTUS precedents.

        Arizona’s law was bounced in part where it exercised a power reserved to the Federal government: making illegal presence in the country a state offense.

    2. Arizona isn’t relevant here. There, the state made it a state offense to be in the country unlawfully. The Federal government has not chosen to do that. Being here illegally is not a criminal offense. The state has no authority under our jurisprudence to make that crime.

      California isn’t required to cooperate with Federal officials acting outside any real legal authority. ICE can easily evade these laws by getting warrants. I fail to see how requiring the Federal government to obey the law is constitutionally problematic.

      1. Ok, let me explain it: You’re right, California isn’t required to cooperate with federal officials acting without, for instance, a warrant. And if they’d stopped at that, they’d have been on very firm ground.

        But they didn’t stop at the state not cooperating. They’ve set out to actively impede.

        They’ve legally demanded that not-California, (The private sector, and California’s own employees on their own time.) also not cooperate, even if not-California wants to cooperate. In some cases this demand actually reaches the point of insisting that private entities violate federal law.

        And they’re threatening to act against the federal government, asserting regulatory control over what the federal government does in its own facilities.

        This goes way beyond not cooperating, because what California wants isn’t just to be no part of immigration enforcement. They want to obstruct immigration enforcement.

  17. “AB 103, the detention inspection bill, is a closer case than the other two sanctuary laws because it involves actual state intrusion on federally-run detention facilities, not just denial of state or private assistance. But unlike discriminatory taxes, the inspections do not seize federal assets or prevent the federal government from using the facilities in question. The inspections only pose a threat to federal operations if the inspectors find that the feds are abusing detainees or otherwise violating the law.”

    Isn’t a temporary seizure still a seizure?

    Ilya Somin is misrepresenting the scope of the investigation, making it seem more reasonable. The inspectors aren’t just investigating the circumstances of the detainees. They are also to investigate whether they are being afforded the appropriate due process and the circumstances of their arrest and transfer. And I have a hard time believing the people running the facilities won’t have to devote time and effort into assisting with the broad investigational mandate that California has chosen.

    1. Is it a bad thing to ensure the Federal government is obeying the law?

      1. CA has no authority to inspect/determine if the Federal Government is abiding by Federal law especially using a CA law as State law does not supersede Federal law.

      2. How does that matter with regards to the legality of the laws?

  18. That said, I wanted to mention another remarkable feature of the Administration’s argument that I’m surprised Professor Somin hasn’t brought up yet. The complaint invokes discrimination doctrine and rhetoric in a remarkably thorough way. It doesn’t just claim that California discriminates against the United States. It also presents illegal immigrants as such as obstructions to commerce, preventing deserving Americans from getting jobs.

    This rhetoric is of course very similar to the way that that discriminatory behavior was described in the early civil rights litigation in the 1960s to justify interstate commerce jurisdiction.

    But it is also similar to the way that the Nazis described International Jewry in the 1930s. By hogging the good jobs and businesses and keeping them out of the hands of good, deserving Germans, Jews discriminated against Germans and stole from them what was rightfully theirs. The American South famously claimed opposition to slavery represented discrimination against them – and the Supreme Court endorsed this view in Dred Scott.

    A basic weakness of “discrimination” is that it just means one thinks one is being treated unfairly. And everybody thinks that. Thugs think it too.

  19. One of the buttresses imposed to prevent another Dred Scott was the status/behavior distinctions. When government regulates behavior, it is not subject to a claim it is discriminating and the Equal Protection Clause doesn’t apply. And similarly, people cannot be said to be discriminating against others just because of their status.

    I think the consequences of getting rid of that buttress are significant. Just as courts are now free to rule that behavior is protected, they are equally free to rule that kinds of people are invidious.

    I have argued, in disagreement with Professor Somim, that the federal government has very broad immigration powers and the Executive Branch wide immigration discretion, right or wrong. Don’t like how they use their powers, elect someone who will use them differently.

    But I suspect that Professor Somin would agree with me that treating immigrants as immoral discriminators and imposing moral rhetoric of the 1960s on them – characterizing them as invidious people who are obstacles to commerce, scourges who must eradicated from it, blockages to the channels of commerce which must be removed to permit them to flow – is not merely factually incorrect. Rather, it is making our rhetoric and concepts of unfairness and discrimination more closely resemble the 1930s than the 1960s.

  20. “With respect to those facilities, AB 103 is just a restriction imposed by the state on federal use of state property. The state could simply pass a law categorically banning the use of state and local facilities for federal immigration detention. If so, it can also take the less extreme step of conditioning federal use of those facilities on submission to inspection by state officials.”

    If you are going to play Darth Vadar, don’t you have to be the one with the power?

    Of course, Section 6 of AB 103 does prohibit local (but not state) agencies from entering into new contracts, or expanding/extending existing ones, to serve as immigration detention centers. Section 12 (the inspection provisions) also only apply to local agencies. I’m not sure if that’s because there aren’t any such state facilities or if California thinks it doesn’t need the new law to conduct the desired inspections in state facilities.

    Ilya Somin also ignores the fact that AB 103 authorizes state inspections of private immigration detention facilities, so it’s not just about the state’s own property. Given the lengths he seems willing to go to on this issue, I guess he would argue that since the state could pass a law forbidding private facilities altogether, they can retroactively impose additional restrictions.

  21. The Supremacy Clause of the Constitution requires state and local governments to obey federal law, so long as that law is within the constitutional scope of federal power. But is it unconstitutional for states to “discriminate” against the federal government by denying it assistance that may be available to private parties and state officials – even in cases where there is no specific federal law forbidding that discrimination?

    It seems that if Congress has the power to enact such a law, then there is no risk of the Federal Government losing power in the State/Federal balance.

    So why have this long argument? Both sides agree (I think) that a specific Federal Law would preempt and the SC would control. That makes it Congress’ problem to figure out, not the courts.

    1. Actually there are already federal laws regarding immigration, detention facilities, treatment of prisoners/detainees, etc. so there is no problem for Congress and SCOTUS already controls.

  22. Somin never saw an immigration law he liked and he’s willing to shred the Constitution to gut Federal immigration enforcement.

    He seems to think that is the natural libertarian position, but i think its somewhat telling that the 3 countries at the very top of the Heritage Economic Liberty Index, Hong Kong, Singapore, and New Zealand all have rigid enforcement of immigration laws. Of course Singapore is much less free in terms of personal freedom, and Hong Kong and New Zealand are getting worse, but at least in terms of economic freedom, it goes hand and hand with immigration restrictions.

    1. As a libertarian socialist (or socialist libertarian) I very much object to your implicit characterization of a “natural libertarian position”. I very much disagree with my more conservative libertarian brethren like Ilya on matters economic but the one issue that binds us together is the defense of individual civil liberty. Furthermore, to consider Heritage as the central institution that confers libertarian credentials is highly dubious. Case in hand the very fact that they construct a specific economic liberty index where Hong Kong and Singapore rank high.New Zealand certainly fairs a lot better, but their colonial past binds them to a British understanding of civil liberties that has surprisingly large and gaping holes.

      1. Ok, if you don’t like the Heritage ranking, look at Cato’s Human Freedom index. The top 3 for 2015 are Switzerland, Hong Kong, and New Zealand.

        Again all 3 with very strict immigration laws.

        Hong Kong for instance has about 5% of its population is foreign domestic workers, that have a set wage of about $500 US a month, are required by law to live with their employer, and if they become unemployed have 7 days to leave Hong Kong.

  23. Comments on Somin posts are at least half ad hominem these days.

    Something about immigration just seems to bring it out in people.

    1. No, it doesn’t, jerkface.

      1. Perhaps low hanging fruit, but very well executed.


    2. Probably because Somin’s immigration posts are generally deceptive, twisted, and outright dishonest.
      He frequently cites himself without attribution, pretending that there is widespread support for his arguments.
      When he does cite someone else, his reference is usually cherry-picked, misleading, or outright false.
      Finally, his posts are filled with absurd rhetoric rather than actual arguments. Notice his references to Federal “abuses” of long-standing regular events that he never cared about before it touched on his immigration obsession.

      This time, Somin deserves some credit, because when someone else pointed out he was completely wrong, he actually tried to address the issue.

      1. Your comment almost engages Prof. Somin’s post. But most of what you say is just generalized. And I don’t think there is any reason to impute bad faith just because you think it’s super-duper wrong.

        There is no shortage of commenters addressing why they think he’s wrong.
        There is also no shortage of commenters just calling Somin a doodyhead. Which is lame.

    3. I think the cause of it is that Somin repeatedly attacks immigration enforcement, without ever coming out and saying if there’s any form of immigration enforcement or law that he wouldn’t reject.

      I’d like to see him address the issue from a more positive standpoint, not just saying what he thinks is impermissible, but what he thinks IS permissible. Barring the entry of people carrying contagious disease? Large numbers of men identically dressed, armed, and traveling together? International fugitives from the law?

      That he never gets around to drawing a line between permissible and impermissible suggests that he thinks it’s all impermissible. Which he’s free to think, but he frequently when asserting something unlibertarian states that he’s trying to describe the present state of the law, not just his own preferences.

      In the case of immigration, it really looks like it’s the latter, because the position he’s taking doesn’t look anything like the historical status of immigration law. It looks like his personal preferences, but he’s presenting it as actual constitutional law.

      1. “I’d like to see him address the issue from a more positive standpoint, not just saying what he thinks is impermissible, but what he thinks IS permissible.”

        Yeah, let’s see gunuts do that too.

        1. I’ve done that on occasion. I’m not opposed to, for instance, air quality standards and requirements for good backstops at gun ranges. And there’s nothing wrong with product safety regulations that require that a gun not blow up in your hand.

          In a reasonable regulatory environment, suppressors would probably be mandatory, rather than largely prohibited.

          OTOH, regulations that don’t directly address real harms? Appearance based, or meant to inconvenience criminals at the cost of mostly restricting harmless behavior? A non-starter, it’s a civil right.

          The general problem with gun regulation isn’t that reasonable regulation is impossible. It’s that most of the people pushing regulation don’t want to treat gun ownership as the civil liberty it explicitly is, and view infringing on the right as a benefit, not a cost.

          Somewhat similar to the way “separate but equal” wasn’t categorically impossible, but virtually nobody who insisted on separate really wanted equal.

          1. I assume you meant “inconvenience law abiding people.”

            1. No, I meant inconvenience criminals. That’s all the gun control laws do, after all, is inconvenience them. Certainly don’t actually stop them from getting guns.

              So the gun control laws merely inconvenience criminals while seriously restricting what people who actually obey laws can do.

              Well, to be real, they actually turn a huge number of otherwise law abiding people into criminals. Because gun control laws are probably only second to speed limits in the number of people who routinely violate them without the slightest feeling of being guilty.

              1. Got it, I see what you mean. I think the prohibition of interstate handgun transfers is a great example of that.

          2. Anyway, very well said.

    4. Somin posts are at least half ad hominem these days.

      Goose, gander.

      1. I don’t see it.

        I see a lot I disagree with (not being anti-borders myself), but I don’t see any ‘this is wrong because it’s supporters are bad.’

  24. I’m indebted to ReaderY’s excellent and thorough comments, above. Thank you for the thoughtful discussion of North Dakota v. United States and related authorities.

    Allow me to add: It seems that California’s purpose in enacting these three laws should determine the outcome. California didn’t pass HB 103 because it felt a need to inspect detention facilities. It did it to frustrate federal immigration policies. California didn’t pass AB 450 because it was interested in protecting workers’ privacy rights. It adopted the law to hinder enforcement of immigration law. California didn’t pass SB 54 because its employees are too busy to provide information to ICE. California is refusing to provide this information to make it harder for ICE to do it’s job.

    There are two constitutional principles in play: the federal government cannot commandeer California’s resources and immigration is the sole responsibility of the federal government. Requiring California to treat ICE no worse than neutrally is the only way to keep both these principles in play. If, as Professor Somin suggests, California were allowed to ‘discriminate against’ ICE in the way permitted by these three laws, the state would be undermining the federal government’s immigration policies. The Constitution does not permit California (or Oakland) to establish its own immigration policy.

    1. And it certainly doesn’t permit California to interfere with private parties who want to provide information to ICE.

  25. ILLEGAL ALIENS are NOT immigrants. ILLEGAL ALIEN is the legal term. If you can’t follow the correct terminology, then your article loses a huge amount of credibility.

Please to post comments

Comments are closed.