Sanctuary Cities

Supreme Court Declines to Hear Trump Administration Appeal of the California "Sanctuary State" Case

The ruling is yet another setback for the administration, though legal battles over sanctuary jurisdictions will continue.

|The Volokh Conspiracy |

Lost in the understandable hubbub over other developments at the Supreme Court is the fact that the Court yesterday declined to take the California "sanctuary state" case, which the Trump administration had asked the justices to hear so they could reverse the lower court decision that went against the federal government. The administration sought to reverse the part of the law restricting information-sharing between California law enforcement agencies and federal immigration enforcers. As a result of the Supreme Court's refusal to take the case, the lower decision will stand, and California can continue to enforce this part of its sanctuary state law.

I reviewed the issues involved in the case and the administration's petition for certiorari here. See also this analysis of the Ninth Circuit decision that the administration was trying to overturn.

The Court's rejection of the administration's petition is yet another setback for Trump, one in a long series of defeats for their efforts to try to pressure sanctuary jurisdictions into assisting the federal government's efforts to ramp up deportation of undocumented immigrants. The one major exception was the administration's surprising win in a Second Circuit decision issued in February.

The administration had previously chosen not to appeal most of its sanctuary city setbacks to the Supreme Court. They may have picked the California case because they believed it offered better prospects of success. If so, it did not work out for them.

Justices Clarence Thomas and Samuel Alito indicated that they wished the Court to take the California case. This is notable because they are two of the justices most supportive of federalism limits on national power. Lower courts have ruled in favor of sanctuary jurisdictions in numerous cases based in part on Alito's opinion for the Court in Murphy v. NCAA (2018), which greatly strengthened the case for invalidating 8 USC Section 1373, a federal law the administration relies on heavily in its efforts to coerce sanctuary cities.

It is possible that Thomas and Alito support the administration position in the California case. But it is also possible one or both of them want to take the case in order to issue a definitive ruling striking down Section 1373, which would be an important extension of Murphy. A high-profile Supreme Court decision using federalism principles to curb immigration enforcement would do much to consolidate growing liberal support for judicial enforcement of  constitutional limits on federal power. Thomas or Alito may welcome such an outcome, since legal doctrines usually require a measure of bipartisan or cross-ideological support to be firmly established in the long run. Thomas, in particular, has long sought to build support for stronger judicial enforcement of federalism.

This is not the end of the legal battle over sanctuary cities. Litigation on various issues continues in the lower courts. In addition, it is always possible that the Supreme Court will take another sanctuary case in the future.

The California case is just one of a large number of sanctuary cases that have arisen over the last several years. I reviewed and assessed them in this Texas Law Review article. The issues at stake in these cases go far beyond the immigration context, and have broader implications for both federalism and separation of powers.

UPDATE: I put up this post before seeing  co-blogger Josh Blackman's post on the same subject. He's right that there must have been  disagreement over whether to take the case, and that Alito and Thomas probably tried to persuade the other justices to take it, but didn't succeed. The interesting question is why. Did they want to take it to reverse the lower court, or to issue a strong decision affirming it and thereby solidifying broader support for federalism? It may be a long time before we know the answer, if we ever do.

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  1. I think a new legal tactic here is needed. Here’s it in short

    The “Sanctuary State” laws and those polities that support them are inherently racist, and the laws have disparate impact on poor minority American citizens, reducing their wages by directly competing them with poor, illegal workers.

    Here’s the issue in a nutshell.

    When you lure in and “protect” millions of poor, uneducated, non-citizens to work, this effectively acts to reduce wages for poor American citizens, especially those who are minorities. This is a MAJOR disparate impact, which reduces their wages and their ability to obtain a job, by putting them in competition with millions of illegal laborers. Those actions which help protect those illegal laborers come at the cost of the massive economic damage to those legal American Citizens, which are disproportionately minorites.

    In effect, these “sanctuary” laws are effectively racist, as they suppress poor minority citizen wages. Under the 14th Amendment “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These sanctuary laws effectively abridge the privileges of citizens of the United States.

    1. Even if that would work, it wouldn’t be worth the sell out on “disparate impact.”

    2. “The “Sanctuary State” laws and those polities that support them are inherently racist, and the laws have disparate impact on poor minority American citizens, reducing their wages by directly competing them with poor, illegal workers.”

      This might be true, if it were legal to hire poor, illegal workers. Which it is not.

  2. The thing is, I seriously doubt pro-federalism rulings that are predicated on Trump losing are likely to survive Trump, well, losing. I expect federalism to go out of fashion again by next January 20th, if Trump doesn’t win, because too much of the current support for it is only due to who’s President.

    I don’t expect TrumpLaw to survive past Trump.

    1. From your lips to God’s ear.

    2. “The thing is, I seriously doubt pro-federalism rulings that are predicated on Trump losing are likely to survive Trump, well, losing. ”

      Would the federal government survive another 4 years of “leadership” by Herr Trumpenfuhrer? I sure as hell hope to not have to find out, even at the risk of finding out how ineffective Mr. Biden will turn out to be.

  3. Could the feds make it a Federal offense to not cooperate?

    1. No. Because that would obviously violate Printz.

      1. The problem is, California made it a state offense to cooperate, even voluntarily, even on your own time. It’s actually criminal for a state employee to drop a dime to ICE to warn them that a rape suspect with a detainer is about to be released!

        California can clearly decide not to have their employees help the feds on the clock. Saying they can’t do it on their own time went too far.

        1. “It’s actually criminal for a state employee to drop a dime to ICE to warn them that a rape suspect with a detainer is about to be released!”

          It’s actually criminal to penetrate the jail computer systems to obtain information about who is due to be released. Whether you then tell anyone or not.

    2. They might need a better rationale.

      For example, is the state law was racist, and/or had a disparate impact on minorities, then it may be illegal.

      I believe this is an excellent option going forward.

    3. “Could the feds make it a Federal offense to not cooperate?”

      This is (allegedly) what they have done. But the law that allegedly does this was found to be null and void for being unConstitutional.

  4. Hmm. . . Thomas and Alito. Yes, “interesting” is one word for it.

  5. They are not “undocumented immigrants” they are illegal aliens. Coming up with new and unique names for things to deny their true nature is the opposite of wisdom.

    1. I suppose I should call everyone who has ever jaywalked an illegal walker for all time.

      1. Rather like a jaywalker can only be described as an “illegal walker” while they’re still in the road, illegal aliens are only properly speaking illegal aliens so long as they’re present in the country illegally. It’s not a perpetual status.

        1. A jaywalker can only be described as an “illegal walker” if the local jurisdiction describes jaywalking as a crime. Most places in the United States do not.

    2. Interesting argument but its “illegal aliens” just as much a made up term? Is there an example of the term defined in some legal statue? If we did a literature search of legal statues which of these terms would we find more often? Because I am guessing that “undocumented” is more commonly used that “illegal”.

    3. “They are not “undocumented immigrants” they are illegal aliens.”

      Of course, this is only true if one has omniscience. When these individuals are haled into court, the demand made of them is to produce documentation that establishes that they are authorized to be present in the United States. The ones that cannot produce any documents establishing authorization to be present get deported. From time to time, the category of “people who get deported” includes people who later turn out to be U.S. citizens. Never having had any documents that establish authority to be present in the United States is one way to arrive at court with no documents that establish authority to be present in the United States, but it is not at all the only way for that to happen. The two terms “illegal alien” and “undocumented immigrant” do not mean the same thing. What the court looks for is documents, and you either have them or you do not when the court asks for them to be produced.

  6. “This is not the end of the legal battle over sanctuary cities.”

    The issue of sanctuary cities won’t come until Congress increases the adjudication capability sufficiently to allow enough deportation hearings to make a substantial decrease in the population of unlawful immigrants.

    The problem right now is that there are millions of unlawful immigrants but there is only capacity to deport around 400,000 of them per year. This creates a status of ‘here unlawfully, but not currently deportable’ for the states to deal with, and the states have zero capacity to remove this population. However, they do still have their obligations to detect and prosecute those criminals who operate among and against this population. to successfully prosecute the criminals, they need people to come forward with reports of crimes committed and they need witnesses to come to the courthouse and testify. This means the states have to make peace with the people not authorized to be in the United States in the first place.

  7. Just do it anyway California doesn’t have the funds to fight.

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