Can California Stop Employers From Consenting to Federal Immigration Inspections?

An interesting federalism question raised by a new law that goes into effect on Monday.

On Monday, January 1st, a new California law will go into effect designed to give undocumented immigrants some protections from federal immigration enforcement. The new law, called the Immigrant Worker Protection Act, includes the following new text:

(a) Except as otherwise required by federal law, an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor. This section does not apply if the immigration enforcement agent provides a judicial warrant. . . .

(c) This section shall not preclude an employer or person acting on behalf of an employer from taking the immigration enforcement agent to a nonpublic area, where employees are not present, for the purpose of verifying whether the immigration enforcement agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process.

Because "[t]he authority to control immigration . . . is vested solely in the Federal Government," Truax v. Raich, 239 U.S. 33, 42 (1915), California is ordering employers not to consent to federal immigration officers. Under the statute, an employer that voluntarily consents to a federal immigration inspection is subject to a civil fine. Another part of the same new statute enacts a new section of the labor code, Section 90.2, requiring California employers to notify employees ahead of time if federal immigration agents are coming to check employees' employment eligibility.

But wait, can a state interfere with federal immigration enforcement like that?

The short answer is, I don't know. This isn't my area, and I don't want to venture a guess with as little knowledge as I have. But my sense is that there's at least a serious question about it, and I thought I would say a bit about what I know and invite comments from those who know more.

Enforcement of immigraton law is up to Congress, not the states, and state law provisions that conflict with Congress's system of immigration enforcement are invalid under the Supremacy Clause. I gather the key case is Arizona v. United States, 567 U.S. 387 (2012), which considered whether federal immigration law preempted an Arizona state law designed to add extra state enforcement mechanisms. In Arizona, the Supreme Court held that state law provisions punishing failure to comply with federal alien-registration requirements, prohibiting unauthorized aliens to seek or engage in work in the State, and authorizing state arrests for federal offenses were preempted on the ground that they conflicted with the federal enforcement scheme and "create[d] an obstacle to the full purposes and objectives of Congress." Id. at 410. On the other hand, the Court declined to hold a state provision preempted that required state officers to make efforts to determine immigration status of stopped individuals absent a showing that "enforcement of the provision in fact conflicts with federal immigration law and its objectives." Id. at 416.

California's law seems sort of the mirror image of the Arizona law. While the Arizona law tried to add more enforcement of the immigration laws, California is trying to limit enforcment of the federal immigration laws. As I understand preemption doctrine, the key question is whether "the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Arizona, 567 U.S. at 399. Further, "[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id. at 400.

I'm not sure how to apply these principles to the new California law. I'm a novice when it comes to preemption doctrine. The federal immigration laws are complex, and I'm wary of trying to work my way through them. So I'll leave the analysis to others with more background. To the extent it matters, though, there seems to be no clear statutory authority on point giving immigration officials inspection powers. The immigration agencies have various programs on inspections, see for example here, here and here. But my novice's sense is that these programs enforce the immigration laws without elaboring on the scope of powers given for that enforcement.

One interesting part of the picture is that the California law was expressly pitched as a means to undermine federal immigration policy. This is from the press release introducing the bill:

Amid escalating reports of the Trump Administration's indiscriminate raids on immigrants' homes and heart-wrenching stories of parents being snatched away from their children, Assemblymember David Chiu (D – San Francisco) was joined by workers from the Service Employees International Union (SEIU) California and the California Labor Federation to unveil legislation that represents California's latest and boldest challenge yet to Trump's hateful agenda against immigrants. AB 450 affirmatively protects workers from immigration enforcement through workplace raids, many of which unlawfully violate worker rights. For example, past raids occurred under the auspices of narrow individual arrest warrants that ICE used to question and detain every single worker at a worksite, including U.S. citizens and workers lawfully present - violating their basic constitutional rights.

"Trump's threats of massive deportations are spreading fear among California workers, families, and employers," said Assemblymember Chiu, a son of immigrants and a former civil rights attorney. "AB 450 declares California's determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity. I'm proud to author this legislation which goes beyond California's existing defense of immigrants to offer new legal protections for individuals in our workplaces."

Can this "boldest challenge" to federal immigration policy withstand a preemption challenge? I'm guessing we'll find out, but in the meantime I hope others who know this area might offer more informed perspectives in the comment thread.

Comments

[ReaderY]

Suppose that a private individual threatened a potential witness into not giving information to a federal investigation. Clearly the private individual couldn't do that. It would be obstruction of justice, among other things.

What I'll suggest here is if a private individual can't do it, neither can a state. A state of course is under no obligation to help a federal investigation. But actively interfering is a totally different matter.

And this is active interference. The exception for a warrant doesn't save it. A federal investigation needs evidence to obtain warrants. And voluntary cooperation of witnesses is how information is typically obtained. Active interference with the federal government enforcing its laws violates the supremacy clause.

In addition to violating the federal government's rights, States prohibiting private individuals from voluntarily providing information to federal investigators may well violate the individuals' rights, for example, their right to peaceably petition their government for a redress of grievances.

[Rossami]

Interesting analogy. I'm not sure it's quite right, though. A company certainly could establish a policy forbidding its employees from voluntarily consenting to police inspections of non-public areas. Or more likely, restricting the power to consent to that inspection to certain corporate officers (such as the General Counsel or Head of Security). That has never been considered obstruction of justice that I'm aware of, nor is it a violation of the individual employee's rights.

So would the state's action in this case be more like witness tampering ("I'm gonna break your legs if you talk to the coppers") or more like the allowable corporate restrictions? I could see arguments both ways.

[ReaderY]

But a private employer is the owner of its property, with freedom, as the owner, both to say who can enter and leave, and to say which agents have its permission to speak for it. The state here is not the owner of the property. The right to say who may enter and who may leave ones private property is a core indicium of ownership; when the state tells private owners who may and may not enter, it is interfering with their property rights. Sometimes it can do this. Discrimination laws are an example (the state tells business owners it has to let people on their property they might want to exclude). But it is acting in a regulatory capacity. And when acting in a regulatory capacity, it is subject to the supremacy clause.

Suppose, by way of analogy, that the state of Alabama had passed a similar law in the 1960s requiring business owners to refuse admittance to agents seeking to enforce the civil rights laws. Do you think that would have been constitutional? But there's no difference between the two laws except you happen to like California's policy today but not Alabama's of half a century ago.

[Brett Bellmore]

I would say it's more the witness tampering case, because the state is presuming to issue orders to the employees of non-state companies, not its own employees. In fact, it prohibits the employee from such cooperation even if such cooperation is corporate policy, the order over-rides the employee's relationship with their employer.

If Arizona could not by state law assist in enforcement of immigration law contrary to a Presidential policy to not enforce the law, by virtue of the supremacy clause, I can't see how a state law obstructing enforcement of Presidential policy to enforce actual statutory law could possibly survive a supremacy clause challenge. This is nullification statute territory, beyond that territory, really, as the state is ordering private actors to obstruct federal law enforcement even if they don't want to.

[DougLaw]

This is a useful thought and maybe one that Prof. Kerr can help with. As he knows as well as anyone, 18 U.S.C. 2702 generally prohibits providers of electronic communication services from divulging contents or records of its customers' communications to a governmental entity, but there are exceptions. An exception allows, but does not require, the service provider to divulge the information if it believes, in good faith, that an emergency requires disclosure without delay. 2702(b)(8), (c)(4). Could a state prohibit service providers from doing voluntary disclosure pursuant to that exception?

If so, would the same answer apply to other voluntary-disclosure exceptions? (b)(7)? (b)(6)? (c)(6)?!

[Michael Ejercito]

A state could of courser prohibit voluntary disclosure to its own law enforcemnent agencies, but its authority to prohibit disclosure to federal law enforcement is nearly nil.

[Lee Moore]

Suppose that a private individual threatened a potential witness into not giving information to a federal investigation. Clearly the private individual couldn't do that. It would be obstruction of justice, among other things.

I just want to clarify what you mean by "threatened" here. It could refer to something that is illegal anyway like "I'll cut your tongue out, if you talk." But it could be something that is legal like "You won't be getting another order from us, if you talk."

Are you saying that "threatening" to do something that you have a lawful right to do becomes illegal if it is intended to dissuade you from co-operating with the police ?

[Noscitur a sociis]

Are you saying that "threatening" to do something that you have a lawful right to do becomes illegal if it is intended to dissuade you from co-operating with the police?

It certainly can be. For instance (to stay with California), under California Penal Code ? 136.1(b),

every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

(1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.
(2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with that victimization.

[Lee Moore]

That sounds fun. Is there a corresponding federal law ?
And if so, who goes to jail - the California legislators or the folk implementing the new law ?

[Katun]

Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If law enforcement is at a business to perform a search, then they need a warrant "particularly describing the place to be searched". I don't know why an immigration law-related search should be an exemption to a protection within the Bill of Rights.

[Michael P]

That has never been the case. Freely given consent of the property owner (or an authorized agent of the owner) has, AFAIK always, been considered one reason that a search is reasonable.

[Michael P]

One counterexample to the general rule belatedly occurs to me: A landlord cannot solely consent to government search of rental property that is leased to a third party. However, that is really nothing like the situation that this California law addresses.

[BadLib]

Actually, I don't think your counterexample to the general rule really is a counterexample at all. At least in California, for example, a landlord has no right to enter a leased residential unit unless they provide 24 hours notice except in the case of an emergency. I think the key here is that the tenant has complete and, with the narrow exception of access for repairs and similar activities, exclusive control over their rented residence.

[MatthewSlyfield]

When someone is faced with armed agents of the government, the idea that consent could be freely given is a terrible joke.

The mere presence of armed agents of the government is necessarily coercive.

[nonzenze]

If I call the police to my house after it's been broken into to investigate, do they need a warrant?

[Purple Martin]

No. Why do you ask?

[VinniUSMC]

Because that's one of the things that this law addresses (purportedly, I haven't read it). It precludes a business from inviting law enforcement onto it's property, but only if it pertains to immigrants.

IOW, the analogy would be a law that prevents citizens from calling the police to their house to investigate a break-in without first obtaining a warrant.

It wasn't that hard.

[Brett Bellmore]

"Undocumented immigrants";

Please, do not use that term. It's a horrible euphemism. We're not talking here about somebody who lost their green card because their pocket got picked. We're talking about people who don't have documentation because they're not here legally.

In fact, usually they will have documentation. It's just that it will be forged.

You might as well refer to bank robbers as "making undocumented withdrawals".They're not undocumented, they're illegal.

A secondary point, but perhaps more important. " I gather the key case is Arizona v. United States, 567 U.S. 387 (2012), which considered whether federal immigration law preempted an Arizona state law designed to add extra state enforcement mechanisms. "

In Arizona v. United states, it wasn't federal immigration law that was held to preempt the Arizona law. That would have been a legitimate application of the Supremacy clause. It was federal policy which was actually contrary to the law, and Arizona law that was congruent to it. The Court decided to treat the Supremacy clause as applying to a federal policy that contradicted actual law.

If anything, it should have been Arizona citing the Supremacy clause, not the feds.

[Drewski]

"In fact, usually they will have documentation. It's just that it will be forged."

This is a lie, and you know it. The majority of undocumented immigrants are visa overstays. Forged docs are a factor in a vanishingly small number of cases, and most often the bearers are victims of human trafficking, not hardened drug lords.

(Worth also noting that overstays have broken no criminal law and are removed in civil actions.)

[Careless]

Even visa frauds need fake documents if they want to work on the books.

[Brett Bellmore]

The forged documents aren't used to enter the country, they're used once you're in the country, to gain employment and for other purposes where you need to present ID.

The demand for false ID for illegal immigrants is one of the primary drivers for identity theft in America, and THE driver for systematic under-enforcement of laws against it.

[Badger Pundit]

I'll go with Bill Clinton and say that "illegal alien" is the appropriate term for aliens illegally present in the U.S.:
https://youtu.be/ZnOpGI0qRhA

[tommyboy]

You are wrong. The estimated amount of visa overstays is ~400k and most from Canada. If you think that is the majority of people in this country illegally, you are insane, uninformed or dishonest.

[MJBinAL]

how about...
insane, uinformed, AND dishonest

[SimonP]

Please, do not use that term. It's a horrible euphemism. We're not talking here about somebody who lost their green card because their pocket got picked. We're talking about people who don't have documentation because they're not here legally.

Right, which usually means they failed to fill out the right forms and get the right stamps from the federal government. They're here "illegally" because they've failed to comply with all of the bureaucratic requirements we've placed on entering the country.

It's like driving without a license or valid registration. We say, "unlicensed drivers," not "illegal road-trespassers."

[Brett Bellmore]

It's like driving without a license or valid registration for people who don't qualify for either.

[SimonP]

We don't distinguish between unlicensed drivers who are unlicensed because they're not qualified to get one, and unlicensed drivers who just forgot their licenses at home, do we? They're "illegal road-trespassers" either way, aren't they?

Anyway, your distinction is silly. Undocumented immigrants include visa overstays (akin to expired licenses), non-compliant visa holders (akin to driving illegally only on a permit or driving the wrong vehicle for a license), immigrants who could have applied to enter the country legally, immigrants who are here for no fault of their own and may not even know they're not citizens (e.g., Dreamers), refugee and asylum-seekers whose claims have been denied (for good reason or not), and so on. It doesn't matter why someone's "unlicensed," for purposes of the law. Why are you drawing that distinction?

[Perseus`]

People driving entirely without licenses or with expired, suspended, revoked, etc. licenses are all illegal drivers.

[BadLib]

We don't distinguish between unlicensed drivers who are unlicensed because they're not qualified to get one, and unlicensed drivers who just forgot their licenses at home, do we?

Actually, we do at least in California. See the Vehicle Code:

12951.

(a) The licensee shall have the valid driver's license issued to him or her in his or her immediate possession at all times when driving a motor vehicle upon a highway.

Any charge under this subdivision shall be dismissed when the person charged produces in court a driver's license duly issued to that person and valid at the time of his or her arrest, except that upon a third or subsequent charge the court in its discretion may dismiss the charge. When a temporary, interim, or duplicate driver's license is produced in court, the charge shall not be dismissed unless the court has been furnished proof by the Department of Motor Vehicles that the temporary, interim, or duplicate license was issued prior to the arrest, that the driving privilege and license had not been suspended or revoked, and that the person was eligible for the temporary, interim, or duplicate license.

In some jurisdictions, the police will usually just pull up your license w/picture on their computer in the patrol car and, if everything seems right, the officer will likely not cite you for the missing license -- esp. if he's just giving you a warning about something.

[FlameCCT]

Funny thing, the US government also requires visa holders to carry their passport with visa or residency card with them at all times.

[David Nieporent]

We don't distinguish between unlicensed drivers who are unlicensed because they're not qualified to get one, and unlicensed drivers who just forgot their licenses at home, do we?

Uh, yes?

In fact, someone who has a license but left it at home is not an unlicensed driver at all. They have violated the traffic laws, but it's a different violation entirely than someone who actually isn't licensed.

[FlameCCT]

Correct. We distinguish between licensed drivers and unlicensed drivers regardless of the reason for lack of license (suspended, revoked, failed to renew, etc.) Just like we distinguish between legal aliens (foreign nationals) and illegal aliens (foreign nationals) regardless of the reason for lack of visa (tourist, work, resident, etc.)

Unlike Progressives that fail to understand the difference between legal and illegal in many areas not just immigration.

[Robert]

Except that many illegal immigrants have the same qualif'ns as legal ones. Some are legal only by virtue of a lottery. So they may be qualified, but just unlicensed. "Undocumented" seems an apt enough term for those in that situation.

[jph12]

So am I just an undocumented Powerball winner?

[Robert]

In that nobody could tell you apart from one any other way, yes. Nothing other than the lottery's say-so makes one a winner. There's nothing else about the tickets that differ.

[Bored Lawyer]

Nice one. I have to remember that one.

[mydisplayname]

"They're here 'illegally' because..." So, we should call a rapist an "undocumented sex partner" in instances where the rapist merely "failed to comply with all of the bureaucratic requirements we've placed on entering the [body of another]"?

Our national body is due no less respect than the bodies of the individuals which compose it: we have the absolute right to decide who is welcome inside our national body and those who have not been so welcomed are present illegally.

[Robert]

No, because there's no document that can qualify anyone as a sex partner. That's all state of mind as expressed at the time.

[Brett Bellmore]

I thought there actually was a push on to require signed consent before sex in some places, such as college campuses; A rapist thus really could be an "undocumented sex partner" lacking such a consent form.

[Perseus`]

See Eugene Volokh:

"Nor is "undocumented immigrant" or "undocumented worker" somehow more "fair" than "illegal alien." Illegal aliens' problem ? perhaps it shouldn't be a problem, but it certainly is a problem for them ? isn't just that they somehow lack documents. It's that they lack the legal right to be here. One can debate whether they should have the right to be here, but the fact is that under the current legal system their being here is not legal. Someone who owns a gun without a registration required by state law, because state law bars him from getting such a registration (because he's underage or a felon or what have you) isn't just an "undocumented gun owner." He's an illegal gun owner, and identifying him as such better expresses the reality of the situation, even if you think that the law should be different. ...As between "illegal alien" and "undocumented immigrant," it strikes me that the former is more reflective of what is actually going on, for better or worse, and the latter is an attempt to hide what is actually going on. If one is writing political advocacy, one may deliberately choose the latter term (though even then one risks losing credibility). But if one is trying to be an objective journalist, I think "illegal alien" or "illegal immigrant" is the more objective and more candid way of putting things."

http://volokh.com/posts/1253146319.shtml

[PoxOnBothYourHouses]

Perseus: "See Eugene Volokh: "Nor is "undocumented immigrant" or "undocumented worker" somehow more "fair" than "illegal alien."

Nicely played.

[SimonP]

I don't really take Eugene very seriously, to be honest.

[Michael P]

Ah, poisoning the well, an age-old tactic when one cannot refute the other person's argument.

[Perseus`]

I'm sure a judge would be very impressed with a response like that.

[FlameCCT]

That's ok, we don't take you seriously either, to be honest.

[RonF]

"They're here "illegally" because they've failed to comply with all of the bureaucratic requirements we've placed on entering the country."

They've failed to comply the with law. The bureaucratic requirements are part and parcel of that, to ensure that the person who wishes to enter the country is eligible to do so under the law, to provide a record that any prospective employer can refer to in order to see if they are eligible to work, and for law enforcement officials to refer to in order to see if the person is eligible to be in the country. These are not mindless obstacles that can be sloughed off or bypassed. They are established for lawful reasons. If they are not as efficient as they should be, I won't be surprised. But that's no excuse for failing to comply with them.

Question - why did you put the term "illegal" in quotes?

[RonF]

"It's like driving without a license or valid registration. We say, "unlicensed drivers," not "illegal road-trespassers."

No, it's like breaking into a house, avoiding the owner for a space of time and then claiming that you have a right to stay.

[MJBinAL]

This is stupid.

When you drive without a license and are caught, you are going to pay a fine and be told not to do it again.
Compare this to, you have to pay a fine, get deported, and told not to enter the country again.

If you drive without a license again and get caught, you are going to pay a fine, spend some quality time in an orange jump suit, and be told not to do it again.
Compare this to, you have to pay a fine, get to spend time in jail, get deported, and told not to enter the country again.

All of this is because you BROKE THE LAW in every case.

A driver without a license is not an undocumented driver, he is a illegal driver (Operating a motor vehicle without a valid license). Someone who enters a country in violation of that countries laws is an illegal alien.

[Dick King]

I like the term "unauthorized immigrants " . Neutral.

Alas, I never see it.

-dk

[Robert]

Yes, that works very well. There was also the old acronym WOP, without permission. "Illegal" as applied to a person has a weird connotation, although people speak loosely of "illegal drugs" too. "Undocumented" has the problem of overbreadth described above.

[Brightly]

As much as I hate these semantic battles (and the "undocumented immigrant" argument goes WELL beyond this. It is a SJW meme meant to control the discussion and confuse it with straw men "how can any human be illegal", it is not an honest foray into the meaning of words)

But here goes.

If I break into someone's house and start eating their food, why am I not an "undocumented tenant"?

[Malvolio]

The distinction is that a bank robber isn't "making undocumented withdrawals". Being an "illegal alien" / "undocumented worker" / whatever is not a crime.

Maybe it should be, but it isn't.

[Drewski]

Assuming it survives challenges, it'll be interesting to see how this interplays with other consent jurisprudence. Will good-faith exceptions based on subjective belief of consent be foreclosed? If a state court has inferred consent from an ambiguous act, and similar behavior is used to justify a federal immigration search, was this statute violated? What if the state has stronger protections against implied consent than the feds -- does knowingly implying federal consent, without implying state consent, violate the law?

So many questions, but of course it'll be a steep road to even get to them. I have no strong political opinion on this one -- it seems to be more of a symbolic gesture than significant policy. It'll be interesting to see how it plays out, though.

[McGehee]

If it survives challenges, Congress will act in some way to eliminate a perceived loophole, or it gets the hose from Trump.

[ReaderY]

This is an interesting argument - that the state has a right to say what constitutes consent. I doubt it will fly. The necessary and proper clause has been interpreted to permit creating federal common law out of whole cloth on matters far more tenuously related to core federal interests than this. But I do agree that such a law would have a better case for it than this law does.

[tkamenick]

Forget immigration. Does a state have the power to tell a private employer they can't consent to *any* federal official entering a non-private part of their property? How is this not a deprivation of property (the ability to allow somebody to use your property (or deny someone) being one of the key sticks in the property bundle) without due process of law?

[Eric Rasmusen]

If California wins,goodbye osha and epa. This might turn out to be a good thing in the end.

[SimonP]

Do OSHA and the EPA customarily rely on voluntary consent to regulatory investigations, in order to ensure compliance?

[Drewski]

(a) Neither of these agencies employs "immigration enforcement officers" within the meaning of the statute.

(b) The EPA and OSHA have civil investigatory powers that require neither warrant nor a warrant exception (such as consent). In criminal contexts, they need not rely on consent as often as ICE (regulatory agencies often investigate from victim reports, which have greater weight than non-victim tips to law enforcement).

(c) Even if the EPA and OSHA closed their doors tomorrow, California has more stringent environmental and workplace safety regs than the feds -- and strong agencies to enforce them. So there's that.

What I'm trying to say is maybe hold off cackling with glee at the thought of uncontrolled heavy metals and PCBs pouring into our drinking water, at least until you finish a whole paragraph of the article.

[Brett Bellmore]

The point is that the state power to order private individuals and companies to not cooperate with federal employees would, if established as a precedent, end up applying more widely than just immigration enforcement in California.

There are plenty of states that rankle under federal policy, and would love to be able to get away with obstructing it, and not just in the area of immigration enforcement.

[SimonP]

And you're missing Drewski's point, which is that the EPA and OSHA may have legal authority to conduct investigations that a CA-style law would contravene, in a way that CA's law prohibiting compliance with merely voluntary requests for cooperation does not.

There are plenty of states that rankle under federal policy, and would love to be able to get away with obstructing it, and not just in the area of immigration enforcement.

There's an irony in your feeling the need to make the point, considering that the case that would prevent CA from enacting an anti-immigration enforcement law would be an example where a conservative-leaning state was seeking to obstruct the federal government. Republicans have really led the charge, when it comes to negating federal authority at the state level. Democrats taking up the technique is what's new.

[Eric Rasmusen]

"may have power". Do they? That's interesting actually. The FBI doesn't have that kind of unchecked power.

[FlameCCT]

It appears that Drewski is missing the point; if this becomes precedent than other States not just CA can enact similar laws against other federal agencies.

[Thomas L. Knapp]

It doesn't look like it can withstand a court challenge.

On the other hand, the US Constitution enumerates no federal power to regulate immigration, and in fact forbade such a power even by amendment for the first 20 years after ratification. Therefore, per Amendment 10, no such power exists and there's no such thing as an "illegal immigrant." ICE, et al. are just lawless gangsters and should be arrested and jailed whenever they try one of their abduction schemes in California. Sure, the federal courts will intervene with supremacy clause / sovereign immunity / etc., but hopefully the minimal time in stir before that happens will bring about an attitude change and employment reconsideration among those who survive.

[Drewski]

You seem to be pretty deep into a rabbit hole. California isn't succeeding from the Union here. This law is pretty narrow -- it denies some feds an exception to the warrant requirement.

I don't think it's a good law (based on principles of property rights and free association), but you're just bleating hysterically. "Those who survive?" Puh-leeaze.

[Thomas L. Knapp]

If feds get put in jail, do you really think that there won't be resulting deaths? I suppose that the dangers of jail and prison might be a bit over-hyped, but sticking a federal agent in general population would seem to portend danger. Will California do that? Almost certainly not. But it would be nice.

The law does not deny the feds an exception to the warrant requirement. It denies property owners/residents, etc. the right to give the feds an exception to the warrant requirement. There's a difference.

And it's "seceding," not "succeeding."

[MJBinAL]

"California is succeeding from the Union here"

Pity.

[MJBinAL]

Sorry, isn't

[SimonP]

The legislators' comments notwithstanding, I'm not sure how you fit within the Arizona box without being able to cite a provision of federal law that requires private employers to consent to federal immigration investigations. In Arizona, you could at least arguably point to a federal balancing of interests that explains why some actions would be prohibited, and others not. But if the reality of "enforcement" is just that agencies rely on informal consent to investigations outside of any duly enacted legislative or regulatory authority, I'm not sure how you find a comparable balancing.

[jph12]

That's not the way preemption works. That's not the way preemption works at all.

[Rossami]

Interesting. I thought at the time that the Arizona decision was wrongly decided. But I agree that under that precedent, the California law appears utterly indefensible. If the Supremacy Clause prevents states from adding state-level enforcement mechanisms to the support existing federal immigration law, there is no plausible way states can add mechanisms to now frustrate the law.

And the Ninth Circuit's precedents that animus (as expressed through unofficial Executive tweets) is sufficient evidence to taint the process would certainly seem to apply here as well.

All in all, it seems that the open-immigration proponents are going to be hoist on their own petard of legal precedents.

[SimonP]

It's so cute to watch non-lawyers try to engage in legal reasoning. It's like watching toddlers trying to push square pegs through round holes.

Don't worry, you'll get it someday, kiddo!

[ReaderY]

Enjoy your time in front of the mirror!

[SimonP]

Nah, I think I'll spend it skewering non-lawyers/incompetent lawyers here.

[MatthewSlyfield]

"I think I'll spend it skewering non-lawyers/incompetent lawyers here."

In that case, you should share your CV, law degree, and law license with the class, so we can verify that you yourself are qualified to do such skewering.

[SimonP]

Because my credentials are relevant to the efficacy of my arguments?

[Noscitur a sociis]

As far as I can tell, you haven't actually made an argument, just said that Rossami is worse at legal reasoning than you are. If you're not going to show us your reasoning or your credentials, I think it's safe to dismiss your comments.

[Malvolio]

You haven't "skewered" anyone.

Rossami made a reasoned argument. It might be wrong, but statistically, half of all arguments made by lawyers are wrong (because they contradict the other half).

You, on the other hand, just hurled a juvenile insult. "Skewering" would require at least an attempt to make the other person look better than yourself.

[mydisplayname]

I too am fond of watching the many, many toddlers who are smart enough to find large round holds and push through such holes smaller square pegs.

I'm also fond of reminding lawyers that, in each trial before a court, half of the litigant pair looses. I look forward to someday meeting counsel who in each case represents only the prevailing party.

[PaulS]

So could they take it the next step - make it illegal to review employees documentation prior to employment (Note that among the documents commonly used are a state issued ID/drivers license and a state/county issued birth certificate - those two combined establish legal residency - I guess they could just muck up the system by issuing those to any/all).....or withhold federal taxes from those without proper documentation. Both those seem quite a stretch but not far off this law

[KenMitchell]

Please note that California's new drivers' licenses for illegal aliens are about to cause the TSA to reject a CA driver's license as adequate identification to board an airliner. California residents will be required to present an alternative Federal ID such as a passport or military ID card.

[Badger Pundit]

I'll go with Bill Clinton and say that "illegal alien" is the appropriate term for aliens illegally present in the U.S.:
https://youtu.be/ZnOpGI0qRhA

[Absaroka]

"Except as otherwise required by federal law..."

This makes me curious about the extent to which federal statutory law can compel warrantless access for investigators from OSHA, IRS, EPA, etc, etc.

My father was a Dept of Labor Wage and Hour investigator for 25 odd years. In that time I can only recall him being refused admittance in one case, and if they got a warrant for that one it was quick, because he went back the next morning with a US Marshal. I just assumed there was statutory law that compelled admitting various investigators, but I just went a'googlin and found some labor law types advising that you can indeed refuse to cooperate unless a warrant is obtained.

I'd think that if you could tell the various investigators to come back with a warrant that lots of people would do so, yet no one seemed to. Is there some statutory provision obviating warrants? If there is, is it constitutional?

(many of his investigations weren't the result of any complaint, so I don't think he could have gotten warrants)

[SimonP]

I'm not going to spend my day doing the research on this - I'm not an expert - but it does appear that the Occupational Safety and Health Act purports to give OSHA the authority to conduct warrantless inspections, an authority that was later limited by the Supreme Court in Marshall v. Barlow's Inc.. That case does appear to hold that warrants can be required for inspections, but that the amount of "probable cause" required for such warrants is a bit lower than might be the case for traditional criminal investigations. The literature on this seems to describe something called "administrative probable cause," which contemplates a standard that can be met just because "surprise" inspections may be necessary for the broader statutory scheme.

I would imagine that many employers consent to these inspections just to avoid the nuisance of multiple visits and, perhaps, the implicit threat of increased scrutiny if they don't cooperate. In that sense, the CA law may actually help employers who would prefer to demand a warrant from ICE before allowing them to investigate - and I would presume there actually might be several of them, since employers of immigrants wouldn't want ICE to frighten their workforce away - since it means they could no longer be "singled out" for failing to comply with ICE demands.

[Absaroka]

Thanks for the cases. Marshall v. Barlow was decided shortly before my Dad retired, so perhaps for most of his career everyone assumed warrants weren't required.

For everyone's benefit: Marshall v. Barlow states "But the degree of federal involvement in employee working circumstances has never been of the order of specificity and pervasiveness that OSHA mandates. It is quite unconvincing to argue that the imposition of minimum wages and maximum hours on employers who contracted with the Government under the Walsh-Healey Act prepared the entirety of American interstate commerce for regulation of working conditions to the minutest detail.", which sounds like the court thought OSHA inspections were more intrusive than some other inspections.

And as SimonP states, the cause requirement is laxer than usual: ' probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment]."' The decision suggests, for example, that you might be acceptably picked based on your geographical location.

[COTom1]

If ICE wants to get nasty all they need to do is set up check points in and around the business while staying on areas of public access that includes roads leading to the business and check everyone. Also Trump could get other federal agencies involved like the DOT they can also setup check points and stop all commercial vehicle and run them through the mill. About the time they cause traffic to back up causing grid lock people will be call the city and state government officials demanding that something be done. If the local or state police try to shut those check points down that is about the time they will find them selves sitting in the back of US Marshall car being charged with interference with a federal official in the performance of their duties. A great place to start this would be 1315 10th St, Sacramento, CA. stop everyone and I mean everyone no exceptions! 🙂

[mydisplayname]

This precisely the sort of issue contemplated by Art IV, Sec 4 ("The United States shall ... protect each of them against Invasion"). The California statute improperly purports to deny to federal forces the ability to repel, by any means deemed necessary by the President, an invasion by alien residents

Our founders recognized there would be those "who for obvious reasons will be more likely to join the standard of sedition than that of the established Government."

Echoing that point made a year earlier, Madison asked rhetorically [23 Jan. 1788, in Federalist #43] "May it not happen in fine that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the Constitution of the State has not admitted to the rights of suffrage?" Madison concludes that "A protection against invasion is due from every society to the parts composing it" and selects language specifically broad enough ("the latitude of the expression here used") to empower the federal government to address the problem of usurpation by alien residents and their citizen comrades.

As the Court has previously concluded, an invasion need not be an armed invasion, as an armed invasion is but one type of possible invasion: again referencing Madison's letters, "if the minority happen to ... possess the great pecuniary resources, one third only may conquer the remaining two thirds." [See also the pending Massachusetts egg case]

.

[regexp]

The US has had many times more immigrants in this country based on percentage of populace than we do now. This isn't an invasion. Period.

[BadLib]

Do you have a cite showing when, in modern times, the United States had more immigrants that were in the country illegally than it does now?

I'm not comfortable with the notion that protesters, likely some not legally in the country and/or supporting those who are not, waving foreign flags attempting to influence a Presidential election should be so casually dismissed as not being an invasion. (And, no, these were not Russian flags).

Also, recall that parts of Europe once had many more Russian soldiers in them than they do today. Is that a justification for not being concerned if Putin starts sneaking his soldiers into these areas today as long as there are never more than the historical maximum number that ever were in those areas?

(BTW, I didn't vote for Trump. I also support virtually unlimited controlled immigration that allows people in who are law abiding and are beneficial to the United States-- I would remove the cap on H-1B visas for example.)

[Sam Gompers]

"The short answer is, I don't know. This isn't my area, and I don't want to venture a guess with as little knowledge as I have."

Maybe someone else should've written this post then, huh?

[Rev. Arthur L. Kirkland]

Have we identified the precise moment at which right-wing goobers stopped resenting elite, educated opinion?

[Red Rocks White Privilege]

Probably won't end until left-wing goobers start treating "elite, educated opinion" as just that--an opinion, nothing more and nothing less--instead of holy writ.

[Rev. Arthur L. Kirkland]

Elite, educated opinion is merely opinion . . . and evolution is merely theory.

As is gravity.

[Red Rocks White Privilege]

Elite, educated opinion is merely opinion . . . and evolution is merely theory.

As is gravity.

When you have to resort to comparing "opinion" to observable facts tested over decades, if not hundreds of years, and call those facts "theories," it's not hard to see why you think appeals to authority aren't a logical fallacy.

[Rev. Arthur L. Kirkland]

You and Sam need to compare notes on the correct clinger position.

[KenMitchell]

"Evolution", as in the gradual change of members of one species into other forms, is an observed fact. We know that it DOES happen; we're merely uncertain as to the precise MECHANISM of the change. Darwin's "Origin of Species" lays out one explanation, so "Darwinian evolution" is indeed a theory.

Gravity is only a theory, in that we do not yet know how or why it works. The effects of gravity is confirmed as an experimental fact, and we do know that every time I drop a ball, it falls to the floor.

"Elite educated opinion" is something substantially less than Darwinian evolution. And unlike gravitation, "elite opinion", most especially including lawyers' opinions, are quite often wrong. And sometimes are honestly laughable, as here in the opinion that California may prohibit businessowners from complying with Federal law.

[Kazinski]

I can't see how you can make federal immigration officers a pariah class under California law. If it's not illegal to let other non employees have voluntary access to the work place, like vendors, local police, health inspectors, utility workers, family members, then how can you say Federal immigration officials are not allowed?

[El roam]

Thanks for that interesting post , at first place , this is really an absurd in fact . On one hand , in a federal court there was a constitutional challenge for the immigration policy of Trump ( In the northern district of California , in county of Santa Clara and city and county of San Francisco V. Donald trump , and confirmed indeed) on the other hand , such law , violates clearly constitutional right . For What kind of offense then is committed ?? A person , facing federal agent , asking for consent ( this is not really voluntary one , but consent ) and the person , grants it , and punished by law ?? what for punished then at first place ?? Constitutionally , there is no punishment ( even if civil fine) without committing offense . Agreeing to search , granted to federal agent , can never constitute an offense . The latter , hold the prima facie legality . That is to say , that what they do , on the face of it , is always , in advance legal , unless , prima facie , on the face of it , clearly , manifestly , the act is illegal . Can it be the case , that such consent asked , and given , would be illegal prima facie ?? This is an absurd !!

Thanks

[AmosArch]

Umm...obviously a state forbidding a private business from cooperating with federal authorities enforcing federal immigration laws is clear cut active interference with federal law and a clear violation of the Supremacy Clause. If its not what is? How is there any debate about this again?

[PoxOnBothYourHouses]

Exactly, Amos. And to this end the Arizona issue, which is tres murky, shouldn't be an issue at all.

I'd think either private business-owners or the Feds would want to challenge this authoritarian law in court immediately, and I'd expect a 9-0 slap-down of California government if things ever got that far.

[FlameCCT]

It might come to that although the Ninth Circus is familiar with being slapped-down.

[Lee Moore]

This section shall not preclude an employer or person acting on behalf of an employer from taking the immigration enforcement agent to a nonpublic area, where employees are not present, for the purpose of verifying whether the immigration enforcement agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process

This bit doesn't seem to work too well. I suppose the owner of an unincorporated business could take the agent to "a nonpublic area where employees are not present", but otherwise it's going to be hard to avoid polluting the nonpublic area with an employee - the one who's taking the agent to it !

[Lee Moore]

I think it's a pretty effective law even if it's overturned 9-0 in SCOTUS (it'll' do fine at the 9th.) It could outlast Trump just winding its way through the courts.

In the meantime, why would an employer take a chance ? It's even going to be hard to find anyone with standing, unless some Californian employer wants to do it for political purposes.

But also the law sends a message - even if this law fails, we have other regulatory procedures you have to comply with - co-operate with the Feds on immigration and we'll make your life a misery.

[Myrt]

One more reason for some businesses to leave CA.

[Rev. Arthur L. Kirkland]

Or for even more businesses to choose California.

[Jerry B.]

Nullification. John C. Calhoun would be proud.

[Robert]

If it's not your area, and you don't want to venture a guess in an area you have so little knowledge of, then why are you the one writing about it? I thought The Conspiracy was you guys writing about whatever you wanted to, not like you had to venture something when it was your turn. Am I missing something as to how this works? Everybody else off for the holiday, you felt you had to fill?

[Rev. Arthur L. Kirkland]

Why do the wingnuts aim this argument at Profs. Kerr and Somin, but never at the more predictable, reliable movement conservatives among the Conspirators?

Carry on, clingers.

[Robert]

What makes me a wingnut? Have any of the people you described written a statement here like Prof. Kerr did? I can't peer behind the scenes & figure out why one of them posts, & it seemed odd that he would introduce his entry that way. Surely there'd be others blogging about it here if it were that significant, right? Frequently we've had several bloggers chime in on a single subject here.

[Orin Kerr]

"I thought The Conspiracy was you guys writing about whatever you wanted to, not like you had to venture something when it was your turn."

Not only can you write about what you want, but you can write about it the way exactly the way you want to. That includes explaining what you know and being candid about what you don't know, which i realize is a pretty un-Internet thing to do.

[Rev. Arthur L. Kirkland]

These goobers are never going to accept you (or from Prof. Somin) the way they embrace Prof. Volokh and the other hard-right Conspirators. See, for example, their avid consumption of Prof. Volokh's amateurish stylings on transgender issues.

You should be proud of this.

[Robert]

You're ascribing a motive that isn't there.

[Orin Kerr]

I guess I'm confused as to what the motive was at all. In any event, I wrote on it because I wanted to; I just moved to California, and I'm trying to learn more about California law. I understand if you find that objectionable, but that's life.

[FlameCCT]

Perhaps he wanted to write about it although it is out of his area of expertise.

[Robert]

So (see hook above for reason for "so") as long as you invite us to take it up, even though I have no knowledge at all, I feel empowered to do so! Engaging in a little lawyer-think (or maybe lawyer-caricature) as a non-lawyer, it looks like there's no conflict here at all, because employees in Calif. subject to federal immigration law can satisfy both the state and federal law simply by going out of business or otherwise getting rid of enough employees (all? I don't know the threshhold) to no longer come under the purview of immigration authority. AFAIK it's not unconstitutional for a state of the US to forbid all employment, as long as the prohib'n's applied equally.

Alternatively, maybe there are ways for employers to satisfy immigr'n authority that don't require inside inspection. Perhaps everyone coming in could be subject to verif'n every biz day. Somehow I don't think that's what the Calif. legislature intended, but it's what they may be stuck w.

[FlameCCT]

Even easier would be for ICE to obtain warrants for every visit thereby making the CA law mute. Shouldn't be too hard to get a warrant due to CA law itself.

[scribe]

The California statute seems to bump up perilously close to the federal statute criminalizing seditious conspiracy, 18 USC 2384. That statute says, in pertinent part:

The part I'm looking at reads:
"If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to ... by force to prevent, hinder, or delay the execution of any law of the United States, ... they shall each be fined under this title or imprisoned not more than twenty years, or both."

1. The "force" sufficient to satisfy a criminal statute's element of "force" is minimal.

2. I believe there is enough well-founded fear of prosecution to give standing supporting a civil rights suit by any employer who fears ICE might show up, unhappy at an invocation of the California law. 20 years' exposure is a lot. And there is precedent for such use of a seditious conspiracy charge. Recall, during the 60s, and under the same statute, and in California, there was a seditious conspiracy prosecution started against anti-draft protestors who used their bodies to block prospective inductees from entering a government building for their pre-induction physical. The charge was lodged by the federal police agency (I forget which) having jurisdiction over the building. While in that instance a cooler-headed US Attorney downgraded the charge from seditious conspiracy to trespassing, that was 50 years ago when cooler heads still populated US Attorneys' offices.

[ActualRightWingPatriot]

Individuals have a 1st Amendment right to speak with federal officers about these matters. This one to me is clear, even if you assume the preemption on purpose frustration doesn't cover it.

[ActualRightWingPatriot]

Suppose we get into a war that is unpopular. Can New Jersey prohibit civilian truckers from delivering supplies to Fort Dix? In my view, absolutely not.

[MikeR613]

Liberals are so inventive. They will probably be hurt and surprised when some Trump voters do the same to them, next chance they get. Slippery slope, anyone?

[noozeyeguy]

The opportunity already exists. The Sheriff of El Dorado County has called the California Department of Justice to account for its inability to issue ammunition-vending licenses in a timely fashion (over a year!), thus forcing businesses to close until the proper licenses are issued. What's to stop the county administration from passing a law preventing ammunition vendors in said county from even applying for said licenses, and furthermore requiring them to continue selling their wares as before?

Apparently, nothing.

[Robert]

Wouldn't there be a 13th Amendment problem with requiring them to continue selling their wares?

[Rev. Arthur L. Kirkland]

Thank goodness the average Trump supporter is half-educated, unaccomplished, unskilled, and disaffected.

[Goju]

Thank goodness the average anti-Trumper is an pompous, self absorbed ass with a vastly over estimated belief in his own intellectual abilities.

[Goju]

You forgot "deplorable" and "irredeemable". Remember how well those descriptors worked for you?

[Dan Schiavetta]

We have here what the courts will presume is a legitimate federal interest but what everyone knows is a sham and a racist affront to human dignity.

The closest analogy would be to the anti-rendition laws passed by Northern states in response to the Fugitive Slave Act.

[Thomas L. Knapp]

Interesting comparison. Certainly relevant in moral terms, but you're unfortunately right about what the courts will presume.

[Homple]

When I read articles like this, I mentally substitute "tax evasion", or "money laundering" for "illegal immigration" and wonder what people would have to say about it then.

[KenMitchell]

It's interesting that the left-wingers who argued FOR federal premption now argue AGAINST it. You'd think that they would have sense enough to know that will now be hoist on their own petard.

[Maximus Cunctator]

From my reading of the CA law, it is designed to protect individual workers from ICE. But that's only half of the law relating to illegals working. Commentators above have noted that CA authorities can continue to thwart ICE and FG for years through the legal system. But if DOJ shifts policy and instead uses the part of the immigration law that forbids employers to hire illegal aliens as an entry into an employer's records -- instead of attempting to go after employees, now FG will enforce the law against employers. They can demand an investigation of all the I-9 forms submitted by the employer and signed by the employees. Then, finding some violations, they can fine the employer (as has been done in many cases), and then not bother with any enforcement action against the illegal alien. By using this authority, which seems not prohibited under the new CA law, the Feds can create strong incentives for not hiring illegals. This was a very important purpose of IRCA when first enacted, but has not been the first course of action by the Feds, because of business community opposition. If the Trump Administration were to emphasize this part of the law rather than going after illegal aliens, the whole debate would shift. Employers would hire fewer illegals, and the US would be less attractive for illegals to enter. Deportations would be fewer, and voluntary departures more frequent.

[jms]

Isn't this compelled speech? The agent asks me if I voluntarily consent to allow them to enter. I decide that I do voluntarily consent. The law doesn't prevent me from making that mental decision. The law cannot tell me what to think, and as a result, I make a decision that I do want to voluntarily consent to allow them to enter.

Yet I am not allowed to give my actual personal true response to the agent. Instead, I am compelled to utter government-mandated speech that contradicts what I actually want to say. How is this legal on First Amendment grounds?

[David Nieporent]

No, it's not compelled speech. Allowing someone to search your property isn't speech. It regulates what you can do, not what you can say.

[Edward Starski]

I disagree. The new law clearly mandates employers to give warning to employees of federal law enforcement activity. This is COMPELLED speech.

[letters2mary]

I am curious about the state "deputizing" corporations as allies in resistance to federal immigration law. Corporations do act as agents of the government(s) in various compliance efforts, but these measures seem particularly directed at a political end and draconian to boot. It will be interesting to see how this plays out.