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The Constitutional Case for California's Sanctuary State Laws

The feds may commandeer local police into administering neither federal gun control nor federal immigration policy.

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The Justice Department has taken California to court over its status as a "sanctuary state," a term that refers to places where state and local officials refuse to participate in the enforcement of federal immigration laws. In a speech announcing the suit, Attorney General Jeff Sessions accused the Golden State of creating "an open borders system," something he denounced as "a radical, irrational idea that cannot be accepted." Unfortunately for Sessions, his case appears to suffer from a significant constitutional defect.

In the complaint filed in March, the Justice Department asked a U.S. District Court to invalidate several state laws, including parts of the 2017 California Values Act, which stops state and local police from providing certain assistance to federal immigration authorities. Among other things, the act prohibits them 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"; and "providing information" to federal immigration authorities "regarding a person's release date…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." In effect, the attorney general 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 the late 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 parts of the 1993 Brady Handgun Violence Prevention Act that required local police to help implement a federal gun control scheme. The Clinton administration argued that obstructionist local officials should not be allowed to thwart duly enacted national legislation, but the Court disagreed. The provisions were struck down as an unconstitutional "federal commandeering of state governments."

Sessions' case against portions of the California Values Act involves the same constitutional failing that Scalia identified in Printz. The feds may commandeer local police into administering neither federal gun control nor federal immigration policy.