Jeff Sessions' Case Against California's Sanctuary Cities Is a Constitutional Loser

The Constitution prevents the feds from commandeering state and local officials.

Gage Skidmore / Flickr.com

"Lawless open borders radicals" in California, Attorney General Jeff Sessions complained last week, have "enacted a number of laws designed to intentionally obstruct the work of our sworn immigration enforcement officers." To counteract this alleged lawlessness, Sessions announced that the Justice Department was filing suit in federal court against California, seeking the judicial invalidation of three state laws that support so-called sanctuary city policies.

The most significant of those three laws is a statute known as the California Values Act of 2017. It prohibits state and local police from providing various assistance to federal immigration officials, such as "providing information regarding a [detained] 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 Attorney General Sessions, the California Values Act should be struck down because it obstructs the work of federal agents and violates the supremacy of federal law.

But there's a big problem with Sessions' argument. As South Texas College of Law Houston professor Josh Blackman and Cato Institute Senior Fellow Ilya Shapiro point out in today's Wall Street Journal, Sessions' case against the California Values Act fails to pass constitutional muster:

The California Values Act…doesn't interfere with federal law, because, as the Court recognized in Printz v. U.S. (1997), Congress can't "commandeer" state officials. It is not a proper exercise of federal power to dictate how state law-enforcement agencies manage their resources and prioritize their missions. California's policy of noncooperation no doubt makes enforcement more difficult, but it doesn't constitute obstruction or interference.

That's exactly right. As I explained in a column last week, Sessions is effectively trying to force local police into administering federal law, which is precisely what Justice Antonin Scalia described as an unconstitutional "federal commandeering of state governments" in his majority opinion in Printz. That ruling overturned certain provisions of the 1993 Brady Handgun Violence Prevention Act. As I concluded, "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."

Jeff Sessions' case against the California Values Act is a constitutional loser.

Comments

[John]

What about the other two laws Damon? Sessions case may be weak against this one, though I disagree. But the other two laws are not only unconstitutional they are an assault on individual liberty. And Reason hasn't written a God damned thing about them. Worse still, whenever it talks about this issue, it only talks about the prohibition against LEOs turning over information to the feds, as if that is the only issue here.

The most significant of those three laws is a statute known as the California Values Act of 2017

I would say the most significant of the three laws is the law that makes it a crime for anyone in the state to not assert their 4th and 5th Amendment rights when dealing with ICE. That is the state of California telling you that they own your constitutional rights and can determine when you will use them. It is also the state telling people when and how they are allowed to speak to the federal government.

You don't think that is important Damon? Reason no longer considers a state asserting its control over its citizens' civil rights to be important? Not important enough to even mention?

Why should anyone take Reason seriously on this issue? They are literally willing to ignore the state of California claiming complete control over its citizens civil rights in the name of open borders. Is there any libertarian principle that they are not willing to ignore?

[Elias Fakaname]

You nailed it John. In addition to the lawsuit, I would use any legal pretext available to arrest and perp walk the Mayor of Oakland into federal custody. Them go from there.

In the end, the progressives need to knuckle under if we are to have the rule of law.

[loveconstitution1789]

The left wants all these laws, so use them on them.

Enforce the rule of law on these fuckers.

The war on drugs really pissed me off because the weed supporters that voted voted for Democrats who add more laws all the time. Republican obviously support the war on drugs but Libertarians don't.

So you end up with thousands of more laws and no repeal of drug laws. A facade of weed legalization loaded down with massive government regulation.

Enforcing the unconstitutional drugs laws super harshly on everyone in the USA would have been the quickest way to end the drug laws.

[Number 2]

I'll cut Damon one break: maybe he labeled the California Values Act the "most significant" because the other two were so blatantly unconstitutional that they did not warrant consideration.

[John]

Since when is a state making a blatantly unconstitutional assault on civil liberties not warrant consideration? Moreover, the suit is against all three of the laws. If Root considers those laws to be obviously unconstitutional, why does he say in the headline Sessions' has a weak case against California? The implication is that the entire case is weak, not just one part of it.

Sorry but Root doesn't deserve a break here.

[Elias Fakaname]

Part of the problem with this article is Reason's massive bias against the rule of law when it comes to immigration. They have a very hard time maintaining any objectivity in this area, at a minimum. Then you get to writers like Dalmia that go full shrill retard on the subject.

[jcw]

Just as an FYI, most coverage of this by Reason pretty much dismisses the other two for the reasoning you mention. I'm actually surprised that they don't link to previous articles. It's a weird point to focus on though.

[higgyb]

Reason is like the rest of media; they argue points that advance their own agenda and ignore anything which may weaken it. Reason is staunchly open borders and any chance to promote that point is taken. Any threat to it is buried.

It would just be civil of them to openly say so.

[Get To Da Chippah]

I agree that Session's case doesn't have a Constitutional leg to stand on, but I can still disagree with CA's stance of criminalizing the act of voluntarily assisting with federal immigration investigations.

[John]

So you think criminalizing talking to the federal government is a constitutional exercise of state power? Really? How exactly do I have free speech if the state can make it a crime to talk to the federal government? And how do I have any constitutional rights if the state can tell me when I have to assert them? The rights are mine or they are not rights. And the rights being mine, means I and I alone get to decide when and if I assert them.

[Jonny Scrum-half]

You keep using the phrase "criminalizing," and I don't think that's accurate.

[John]

Yes it is. The California law makes it a crime for an employer not to assert their 4th and 5th Amendment rights against ICE. That means if you choose to cooperate with ICE and do not demand they get a Warrant, you are committing a crime in California. That is criminalizing speech and the state of California claiming ownership over its citizens' constitutional rights.

[loveconstitution1789]

You can tell that California has not considered the law on this issue.

Other states enacted legislation that made it illegal for state employees to use state resources to help federal authorities on certain issues like intrastate gun and bullet manufacturing being outside the purview of the Commerce Clause. Obama was going after bullets and guns, of course.

This would not be the state making it illegal to talk to the feds but you cannot use state resources to undermine the 2nd Amendment protections for keeping and bearing arms.

[John]

Make it illegal for employers to cooperate with the EEOC or HUD or EPA. If California can do this, then why can't other states do the same? You could destroy environmental laws with this precedent. If a state makes it illegal for its employees or citizens to cooperate with the EPA or other federal enforcement agencies and made it a crime for citizens to speak to such agencies absent a warrant or subpoena, EPA would play hell enforcing federal environmental statutes in that state. And how is that any different than this? It isn't. But they would turn on a dime and claim it is because fuck you that is why.

[Number 2]

Wait until some red state decides to declare itself a Federal Income Tax Sanctuary State. Watch the sparks fly then.

[John]

Income tax is an even better example Number 2. And by the logic Somin is giving, there is no reason why a state couldn't do that.

[loveconstitution1789]

That would be Tony's kind of insufferable rebellion since you cannot have a welfare state without that steady flow of the People's gold.

[I can't even]

Let's make it illegal for gun shops and manufactures to cooperate with the FBI and BATF.

[Elias Fakaname]

Bingo. What if a state made a law directing gun dealers not to comply with FFL reporting requirements? Or any number of other federal government functions?

[Jonny Scrum-half]

Are you saying that an administrative penalty is the same thing as a criminal conviction? Because I don't think that's true.

[John]

Yes it is. If you don't pay the penalty, you go to jail. Fining someone for exercising their rights is no less illegitimate than jailing them. It is your right. That means the government can't punish you for exercising it.

[Jonny Scrum-half]

Is it your opinion that every California labor regulation that imposes a fine for non-compliance thereby "criminalizes" that activity? If a California employer is fined for refusing to share workers'-compensation paperwork during an audit of the Labor Commission, is that a violation of the employer's Constitutional rights?

[John]

In a sense they do. Regardless of what you want to call it, saying that "we are just fining you and not jailing you for exercising your right to talk to the government" doesn't make it any less objectionable.

You are just being pedantic here.

[John]

Moreover, these laws make it a crime. you can be more than fined. So even your pedantic point isn't correct.

[Get To Da Chippah]

So you think criminalizing talking to the federal government is a constitutional exercise of state power? Really?

In this case, yes, since it only seems to target state and local LEOs, and not everyone. There are umpteen examples of employers imposing various conditions of employment, and that often does curtail such things as freedom of speech. NDAs are a good example. If you don't want that law to apply to you, you are free to resign from your position as a state or local cop in CA.

Having said that, I still disagree with the spirit and intent of the law, but I do think it falls within the scope of what an employer can require of its employees. They are not requiring employees to break federal law, merely instructing employees to withhold assistance until the federal government produces a warrant or other proper legal paperwork.

[Elias Fakaname]

Reason has zero credibility on this subject. As they are shrill cheerleaders for open borders no matter what.

[John]

The State of California criminalizing lawful speech is just not a big deal. It is not really very important. Root actually wrote that. Reason can no longer claim to give a shit about civil rights or principles or anything.

[loveconstitution1789]

Hillary lost and Trump is a poopy head and that is all Reason is concerned about.

[Hugh Akston]

Yep, Damon's link to the WSJ article by two non-Reason writers is completely untrustworty.

[John]

He agrees with their position. Moreover, Volkh Conspiracy is now a part of Reason. So Somin is a Reason writer. So, try again Hugh.

[Mickey Rat]

The Arizona law thst wsd ovetturned in 2012 is not relevent?

It is passi g strange to consider that a state cannot pass a law rewuiring its law enforcement agencies to assist the federal government in enforcing federal law for fear of undermining federal authority but can require its agencies to not cooperate at all.

[John]

It it is a state matter as Shapiro claims, then the state should be able to choose to cooperate or not and the Arizona law should have stood. But both Reason and the hacks at the Volkh Conspiracy swore up and down that the Arizona law was unconstitutional. And now they are taking a position exactly the opposite of that. I honestly don't understand how someone could be that intellectually dishonest. You know they have rationalized this and think they are not being dishonest hacks. The amount of self-delusion that requires is just epic.

[NotAnotherSkippy]

Rules are rules when we like them. What don't you understand?

[John]

Pretty much. Reason's total silence on the California law making it a crime to cooperate with ICE is probably their low point. That law is a direct assault on civil liberties. It is so bad even reason can't defend it. But Reason is so deeply unprincipled about this issue, they just won't talk about it since they know there is no way to defend it. If they will remain silent about that, they will remain silent about anything.

[Mickey Rat]

And again Kennedy's rationale for overturning the law was not undermining federal authority. If a state cannot have a policy on immigration, then it cannot have a policy that goes against federal law.

[John]

You cannot reconcile affirming this law and overturning the Arizona law. It is just a case of the open borders people saying fuck you that is why. The worst part about this is that not only does it undermine people's faith in the courts and the rule of law, it sets the precedent for this sort of results-based "if the judges don't like the law the states can nullify it" judicial action for all sorts of other laws. People like Root and Somin really are useful idiots. it doesn't seem to occur to them that even though they are getting their open borders pony, they are giving the left the sword to kill them in doing so.

[BYODB]

Is Volokh claiming that the California statutes are constitutional as opposed to the Arizona laws? Honestly curious.

[John]

Yes. At least with regard to LEOs.

[BYODB]

Where at? Or is it someone other than Volokh?

[John]

Isn't Somin a writer at Volkh? He is claiming that in the WSJ article Root linked to. If Somin isn't part of Volk, then I stand corrected, Volkh isn't claiming that as far as I know.

[BYODB]

I mean Volokh as an individual rather than the blog itself, but you answered by question with your question.

[John]

I meant the Blog not the man. I misunderstood you. I do not know what Volkh himself thinks about this.

[Jgalt1975]

You're either ignorant or full of shit -- the Arizona law didn't merely require "its law enforcement agencies to assist the federal government in enforcing federal law," it actively made it a state crime for individuals to be in violation of federal laws in an area of the law that (a) is subject to exclusive federal jurisdiction (something even Alito recognized in his dissent) and (b) doesn't even necessarily carry jail time under federal law, and that's why parts of the law went down. SCOTUS upheld the part of the law that required state and local law enforcement to verify arrestees' immigration status so long as the verification was done "during the course of an authorized, lawful detention or after a detainee has been released," i.e., people couldn't be arrested and held just for the purposes of an immigration status check.

[John]

The reason why Arizona making something a crime, in this case, is wrong according to the court is because immigration is a federal area that the federal government has occupied the field in. If immigration is an exclusively federal area, then states can't regulate it period. That means they can't refuse to cooperate with the feds just like they can't try and regulate it themselves.

You are ignorant and full of shit here. Stop projecting it onto people who are not.

[loveconstitution1789]

A constitutional loser would be lying that (1) the president and federal agencies don't have constitutional authority to regulate immigration (2) states and cities actively aiding and abetting criminals is the same thing as refusing to enforce federal law.

[Phos]

Why a loser? Is immigration an Article 1 Section 8, enumerated power of Congress? NO.
Is it an enumerated power of the executive or judicial branch? Again, NO.

[Just Say'n]

So, the feds are wrong here because California has the right to force its local governments to not comply with federal law enforcement, but then Shackford said in a previous article that Texas doesn't have the authority to force its local governments to comply with federal law enforcement. How does that make sense?

http://www.reason.com/blog/2017/08/31.....ks-most-of

Heads, I win, tails, you lose.

[John]

Reason really is beyond shame on this subject.

[Just Say'n]

Stop using the crutch of selectively applied federalism to justify the incoherence of these positions. This just boils down to "do we like this policy", if so then we will find a way to justify it and if not then we will contradict ourselves to trash it.

[John]

Remember Shackford and Reason had a stroke over the woman in Kentucky refusing to issue gay marriage licenses. The US Constitution is nothing but the supreme federal law. If California is free to ignore Immigration law, then why isn't Kentucky free to ignore marriage law as interpreted by the Supreme Court? Both are merely federal laws.

[Just Say'n]

It's not even that. I'm generally more aligned with Reason's position on immigration, but the incessant lying about this issue and the blatant hypocrisy is not helping their case. The dishonesty in defense of the neoliberal position has not turned out well in Europe and I don't understand why they think the same tactic will work here.

[John]

I agree. This is not about your opinion on immigration. It is about logical consistency and intellectual integrity.

[Mickey Rat]

Agree or not with her position, she was following Kentucky state law as written in light of tbe SCOTUS ruling. Kentucky's marriage law was voided at the time, its status was ambivalent. Not giving out marriage licenses at all was a valid executive response to the court until the state legislature could bring the law into compliance with the ruling. Unless you think that SCOTUS can act as a state legislature as well as the highest federal court.

[loveconstitution1789]

Great point John. I forgot about Reason's position on that Kentucky lady refusing to issue marriage licenses because butt sex and federal supremacy.

[Elias Fakaname]

And she was technically correct not to issue the licenses. Just because the SCOTUS ruled for gay marriage didn't change the law in KY. The point she would have to issue marriage licenses to same sex couple would be triggered by the legislature rewriting the law based in the decision p, not the decision itself. As courts do not make law.

[Jgalt1975]

If you actually don't know the answer to that, then you must be one really spectacularly shitty lawyer, John -- there's an individual constitutional right to marriage regardless of sex that the states cannot abridge because the 14th Amendment provides that the states must give equal protection under their laws; there's no constitutional right for the federal government to order state governments and their political subdivisions to enforce federal laws because the states retain their separate sovereign status under the 10th Amendment to except to the extent their sovereignty has otherwise been reduced by later amendments. (The 14th Amendment is a later enacted amendment and thus, notwithstanding the 10th Amendment, the states cannot afford their citizens fewer constitutional rights than the U.S. Constitution provides for.)

[John]

You are a spectacularly stupid fucking person who totally missed the point. There is a "right" to marriage because the Supreme Law of the land, the Constitution, says so. But understand the constitution is just another law. Ignoring one federal law is in principle no different than ignoring the Constitution. In both cases, you are ignoring federal law. It is just in the case of the Constitution you are ignoring the supreme law rather than an ordinary one. So, that clerk ignoring the constitution is no different than California ignoring immigration law. In both cases a state official is claiming the right to ignore federal law when it suits them.

Do me a favor, go fuck yourself and don't comment on something unless you are smart enough to understand what it says. I am fine with disagreement but I have no patience for people who are too stupid to understand the point.

[jcw]

I am fine with disagreement

Have you ever had a disagreement with someone where you don't curse and belittle them in response? I have yet to see it. It must be everyone else; definitely not you.

[John]

All of the time. I only belittle people when they insult me and then try and make up for it by making a stupid point. This guy calls me spectacularly stupid and then proceeds to make a completely idiotic response to my point. If my response to that violated your delicate feelings, too bad. If you don't like being belittled, make smarter arguments or at the very least be polite when you make stupid ones.

[Elias Fakaname]

People like that should be slapped around a bit. Like Tony, AmSoc, and PB.

[Just Say'n]

Woah- there's a constitutional right to marriage? Polygamists will be surprised to hear that and so will people who want to marry their first cousin.

Oh wait, there is no such thing.

[SMD2018]

If you are going to cite the OpEd, at least cite the fact that the other two aspects of the law were unconstitutional in their view. Very selective use of that OpEd and misleading.

[John]

I don't have a WJS subscription. Do Somin and the other guy say the other two laws that Root thinks are unimportant are unconstitutional?

[H. Protagonist]

"The final challenged statute, the Immigrant Worker Protection Act, is the least likely to survive judicial scrutiny. Under this law, if a federal immigration officer informs a business owner that he employs a criminal alien, the proprietor is barred from consenting to a search of the premises. The state punishes the businessman with a substantial fine simply for being a good citizen, unless the federal agent compels cooperation by obtaining a warrant.

Critically, neither the Constitution nor federal law requires a warrant in such a scenario. California's law applies only to immigration officers; proprietors remain free to consent to searches by federal environmental or health-and-safety inspectors, for example. Because the law interferes with a congressionally mandated mission, the Immigrant Worker Protection Act interferes with federal law. It is unconstitutional by virtue of both the Constitution's Supremacy Clause and the intergovernmental immunity doctrine."

[John]

It is interesting that Somin's objection to that statue is that it interferes with federal law not that it violates the rights of the employer. He is right about the Supremacy issue but that is the least of the law's sins.

Beyond that, if telling employers they can't inform ICE about aliens or respond to ICE requests about aliens interferes with federal law, then telling LEO's to do the same thing also interferes with federal law. Somin's position seems to be that refusing to cooperate with federal law only interferes with it when private citizens do it. And that is absurd.

[DKWalser]

Root is correct as far as he goes. The federal government cannot commandeer the resources of state and local governments. The problem is Root doesn't go far enough. California provides the information ICE is seeking to other parties -- free of charge, as a public service. So, the question becomes: can California discriminate against the federal government and refuse to provide to it the information it is willing to provide to others?

Somin discusses this question on the Volokh Conspiracy. Pay particular attention to the comments from ReaderY in which he discusses North Dakota v. United States, which establishes the circumstances in which a state may discriminate against the federal government. I think the best reading of that case is that California cannot treat ICE differently. If California law enforcement agencies provide information to third parties, those agencies must provide the same information in the same manner to ICE. (Which would allow California to simply put a 5 day hold on all such information requests, which would defeat much of its usefulness to ICE.)

[DKWalser]

However, Arizona v. United States is California's real problem in this area. Arizona's law failed in large part because the state is not permitted to have an immigration policy. No state is. This means any California law that was enacted to thwart federal immigration policy is constitutionally suspect. California cannot have an immigration policy that differs from federal policy. No state can.

So, can California enact a valid law if the significant purpose of the law is to thwart the enforcement of federal immigration law? I think not. If a state were to enact a law and it could be demonstrated that a significant purpose of the law were to suppress free speech or the right to vote, none of us would be surprised if the courts were to strike the law down as unconstitutional. Indeed, we'd argue that was the proper outcome. Why should a different result obtain here (assuming it can be demonstrated California is trying to foster its own immigration policy over that of the federal government's)?

[John]

Above I give the example of federal environmental law. Suppose a state enacted a law that fined any corporation within its borders for providing information to EPA or other federal enforcement agency absent a warrant or subpoena and prohibited any state employee from providing any information to these agencies. That would be no different than what California is doing here. And I cannot imagine that a single serious lawyer or expert on the subject would not see it as an obvious violation of the Supremacy Clause. They only don't see it here because they are hacks and don't think there should be immigration laws.

[Phos]

The supremacy clause is not the only clause in the Constitution.
There are also enumerated powers (of which immigration is not one) and other limits on both Federal and state actors.

[Phos]

Is a general power over immigration "delegated to the United States by the Constitution"? No.
Is a general power over immigration "prohibited by it [the Constitution] to the states" No.
THEN immigration is either a power of the individual states, or retained by the people.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
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.

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