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Jeff Sessions' New Lawsuit Targeting California's Sanctuary Laws

The Trump Administration deserves to lose the case. But they do have better arguments here than in their previous efforts to undermine sanctuary jurisdictions.

Attorney General Jeff Sessions.Attorney General Jeff Sessions.

Donald Trump and Attorney General Jeff Sessions have suffered a string of painful setbacks in litigation arising from their efforts to cut federal grants to sanctuary cities. Sessions' new lawsuit targeting three California sanctuary laws is less blatantly flawed. In my view, California ought to prevail on all three issues raised in the case. But there is room for reasonable disagreement on these questions. It is far from clear which way federal courts will ultimately rule.

The first California law challenged by Sessions is a part of the state's sanctuary legislation that restricts state and local government information-sharing with the federal government. Sessions claims that this law violates a federal law, 8 U.S.C. Section 1373, which prevents state and local governments from forbidding their employees to share information on immigration status with federal immigration enforcement officials.

The Supreme Court has repeatedly ruled that the federal government may not "commandeer" state and local officials by making them to enforce federal law. Such policies violate the Tenth Amendment. Section 1373 attempts to circumvent this rule by forbidding higher-level state and local officials from mandating that lower-level ones withhold information from the feds. Thereby, it supposedly avoids commandeering by avoiding issuing any direct orders to state officials.

This is a distinction without a difference. As Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities." That independence and autonomy is massively undermined if the federal government can take away the states' power to decide what state and local officials may do while on the job. Scalia also explained that federal law violates the Tenth Amendment if it "requires [state employees] to provide information that belongs to the State and is available to them only in their official capacity." The same is surely true if the federal government tries to prevent states from controlling their employees' use of information that "is available to them only in their official capacity." If courts uphold Section 1373, the same tactics could be used to circumvent the Tenth Amendment in other cases. Instead of directly ordering states to enforce federal law, Congress could simply order them not to prevent subordinate officials from doing so, and then give the latter various incentives to cooperate, regardless of whether the state government wants them to. Conservatives who cheer Sessions' lawsuit may not be so happy if a future Democratic administration uses similar tactics to enforce gun control laws or transgender bathroom access. Still, the Section 1373 issue is a difficult one, and federal courts have reached divergent conclusions on it in previous sanctuary city cases.

The new lawsuit also targets California Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court date or deportation. Some of these facilities are owned by the state or local governments, while others are controlled by private contractors. California clearly has the right to inspect its own state and local government facilities at will. This is especially true, given that there is a history of abusive treatment of detained immigrants. The case of privately owned facilities is less clear-cut, but still likely within the state's purview.

Moreover, such inspections do not prevent the federal government from detaining undocumented migrants or otherwise enforcing federal law. The only way they could end up limiting detentions is if the inspections reveal that federal officials were abusing prisoners or violating the Constitution or federal law in other ways.

Finally, Sessions' lawsuit targets Assembly Bill 450, which forbids private employers from cooperation with federal Immigrations and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law. There is no federal law specifically requiring employers to cooperate with ICE raids any time the feds want to launch one. And employers are still permitted to cooperate in those few cases where such cooperation is legally mandated.

Nonetheless, the Trump administration has a plausible case here. In Arizona v. United States, the Supreme Court ruled that federal immigration laws can often override state law even in cases where there is no direct conflict. It concluded that "a state law is preempted where it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Restricting employer cooperation could potentially inhibit enforcement of federal immigration law. The same is true – to a much lesser extent - of state inspection of detention facilities.

But the Arizona decision also includes passages limiting federal intrusion on state autonomy, including noting that "[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole." Moreover, there is an important difference between Arizona's effort to penalize undocumented immigrants more harshly than Congress intended, and California's sanctuary law, which merely limits state and private assistance to immigration enforcement. The Arizona law, as the Court described it, "interfere[es] with the careful balance struck by Congress with respect to unauthorized employment of aliens." By contrast, the California laws leave the federal government free to strike whatever balance it wants, so long as it relies on its own resources to do so. Unlike Arizona, California isn't trying to regulate immigrants (the targets of the federal immigration law). It just restricts the extent to which state officials and private employers assist the federal government in its law enforcement operations.

It is ironic that conservatives in the Trump administration are now relying so heavily on Arizona v. United States, a decision many on the right previously denounced as an unwarranted intrusion on state autonomy. There is a similar irony in liberal reliance on "conservative" pro-federalism precedents in this and other sanctuary city cases.

"Fair weather federalism" is a long-standing problem on both sides of the political spectrum. It is unlikely to disappear anytime soon. But perhaps this case will lead more people on the left to rethink their traditionally negative view of constitutional limits on federal power.

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  • Sebastian Cremmington||

    So basically Republicans will have to craft a program like Obamacare and dangle some federal money along with some future public sector union employees in front of blue states in order to get them to "bite".

  • phattyboombatty||

    It's so hard to take seriously anything Professor Somin writes these days because of his blatant antipathy for Trump.

    The headline "Jeff Sessions' New Lawsuit..." Wrong. The United States of America brought the lawsuit. Jeff Sessions isn't suing anyone.

    The subline "The Trump Administration deserves to lose the case." The Trump Administration? Again, the United States of America filed the lawsuit. And what kind of lawyer would say "deserves to lose"? Deserves to lose because he's a bad guy? Because you don't like him? Because he cheated on his wife? If you believe that the lawsuit lacks merit, you would say something like, "The United States is unlikely to successfully challenge the California laws."

    Once you show that you have a strong political bias, it reduces your credibility for all of your subsequent arguments. By the way, the LA Times had an article this morning where they interviewed multiple law professors in California, and they feel that the arguments of the United States is much stronger than your "plausible" description. http://www.latimes.com/local/l.....story.html

  • Brett Bellmore||

    Frankly, I'm somewhat surprised that even Ilya wouldn't recognize that California went too far in the case of the third law, commanding that private entities not voluntarily cooperate with the federal government, even if they should happen to want to.

    Telling me that I can't allow ICE on my own property without a warrant, even if I want them on my property? Seriously? What's next, they're going to ban all public accommodations in California from serving federal employees unless they enter the restaurant or hotel with a warrant commanding that they be fed and housed?

    I'd add that I find it hard to reconcile the state prevailing on the first two cases with the immigration ruling in Arizona, where an executive branch decision to not enforce existing statutory law was supreme over a state that wanted to comply with that statutory law.

  • TwelveInchPianist||

    Yup. The first two seem plausible that California could win. But a law against voluntarily cooperating with federal law enforcement? Could California, say, make it a crime to report a federal crime to the FBI? There was a rumor a couple of weeks ago about the DoJ considering criminal charges against California officials. I wouldn't be shocked if CA officials could be prosecuted for obstruction for attempting to pass this law, or even if the legislators could prosecuted for passing it.

  • shawn_dude||

    I used to say things like "I wouldn't be shocked if..." and then I see conservative Republicans championing anti-federalist laws, trade protectionism, trade wars, protecting Russia from sanctions, and not caring a whit if the President paid off a porn star he had sex with. I mean, after a huge change like that in just one year, nothing a Republican does shocks me any more. Every day brings a new extreme.

  • TwelveInchPianist||

    Paid off a porn star he had sex with? That's nothing. Remember when Gloria Steinem, feminist icon, said that it wasn't sexual harassment for a man to grope and expose himself to female employees, as long as he "took no for an answer"? Good times.

  • shawn_dude||

    Like that one time when we investigated a US president for a possible real estate fraud but could only manage to catch him in a lie about sex with an intern who consented at the time? Remember how the GOP practically burst a blood vessel in moral shock?

    Fast forward to 2016 and then-candidate Trump is caught on tape talking about nonconsensual sexual harassment and his moves for getting away with it.

  • TwelveInchPianist||

    We investigated him for real estate fraud, sure. But we separately investigated him for lying under oath when he was sued for sexual harassment. And we eventually acquitted him, despite evidence that he lied to the grand jury. We may see how well that precedent holds up against Trump, but we're not there yet.

  • Finrod||

    He wasn't completely acquitted; the Arkansas bar took away his law license for five years.

  • JesseAz||

    The fraud that ended in over a dozen convictions??

  • MatthewSlyfield||

    Real convictions, or guilty pleas?

  • Brett Bellmore||

    Oh, yeah, real people got convicted in the Whitewater case. Bill and Hillary might have, too, but they "found" the subpoena'd documents in the Map Room a couple days after the statute of limitations expired.

    Convenient, that.

  • NYLawyer||

    I doubt the billing records were meant to be found. They could have led to obstruction charges.

  • Krayt||

    Some old-school feminists decried postmodern feminism that went beyond mere equality of freedom and perhaps affirmative action, and moved into a realm they described as "the government turning the male-to-female relationship in the workplace into male-to-child."

    Off-color jokes and similar damaged the apparently childlike minds of women so the power of the state should be used to forbid it, First Amendment be damned.

    As an aside, casting speech as damaging, and therefore preventable, may be more dangerous to freedom in the long run than casting some speech as behavior that is therefore regulatable.

  • Nige||

    Yes, we all notice that paying of a pornstar with hush money is nothing to Republicans if it's Trump that did it. Absolutely nothing, to go with all the other absolute nothings they're ostentatiously suddenly no longer caring about.

  • jph12||

    "championing anti-federalist laws"

    How is a law that prohibits private citizens from voluntarily cooperating with the federal government anti-federalist?

  • damikesc||

    and not caring a whit if the President paid off a porn star he had sex with. I mean, after a huge change like that in just one year, nothing a Republican does shocks me any more. Every day brings a new extreme.

    The argument of a President's sex life was fought in 1999 and, congrats, your side won. It does not matter, amirite?

    Expecting me to give a shit what Trump does in his private life --- or in his private life YEARS ago, is a stretch.

  • Bored Lawyer||

    Yes, the third law (there is actually no specific order, but I mean the third discussed here, that is targeted at private employers) plainly interferes with federal law enforcement. Law enforcement, at both state and federal levels, depends on voluntary cooperation from citizens. You cannot force the federal govt to issue a subpoena or get a warrant every time it wants something from someone. The plain intent here is to hinder federal law enforcement, in the area of immigration.

  • MatthewSlyfield||

    "There was a rumor a couple of weeks ago about the DoJ considering criminal charges against California officials."

    This is more likely about the Oakland mayor who didn't just not cooperate with ICE, he actively warned individual immigrants, who had been issued orders to leave the country, of up coming ICE raids.

  • FlameCCT||

    Yup, she hindered the capture of hundreds of Criminal Illegal Aliens.

  • Krayt||

    If an officer or other official is told about an upcoming drug raid as part of their official duties, and tells the drug lord about it, are they violating a law?

  • MatthewSlyfield||

    You don't think that it would easily qualify as obstruction of justice?

  • David Nieporent||

    Cops have repeatedly argued that drivers flashing their headlights to warn oncoming drivers of speed traps are obstructing justice. Courts have generally rejected that argument on free speech grounds.

  • David Nieporent||

    She, not he, issued a general warning to the public that there were rumors that ICE raids were imminent for the Bay Area. That is not "warning individual immigrants."

  • Drewski||

    Legislators are absolutely immune to criminal or civil penalties for legislative acts. This is a bedrock principle of democratic societies that was Incorporated into American jurisprudence as part of the common law. Indeed, if a legislature were to attempt to criminalize legislation in any context, it would be an unconstitutional law, because the Congress cannot abrogate the sovereignty of a future Congress with anything less than an amendment to the Constitution.

    In short, whoever passed this rumor to you is a fool, who should be discounted in the future.

  • Bored Lawyer||

    Except that 'California officials' includes more than just legislators.

  • Drewski||

    Those other officials would be even less likely to be charged with a crime for the act of passing legislation, unless California has a more complicated legislature than I thought.

  • MatthewSlyfield||

    But I doubt the rumor is about passing legislation. The Oakland mayor has been caught warning individual specific aliens targeted for deportation, many with felony convictions and most had been issued notices to leave voluntarily, of pending ICE raids.

    The rumor is probably accurate, but the original commentor mentioning it was mistaken in connecting it to the legislation at issue in the article. It has to do with overt acts of obstruction of justice that have nothing to do with the officials duties and would not be protected by any form of immunity.

  • David Nieporent||

    The Oakland mayor has been caught warning individual specific aliens targeted for deportation, many with felony convictions and most had been issued notices to leave voluntarily, of pending ICE raids.

    As noted above, no, this is wrong.

    (Even if she wanted to, how on earth could she? Do you think ICE calls up the mayor and says, "By the way, tomorrow at 7 a.m. we intend to round up Hector Gonzalez of 24 East 32nd Street, Juan Gomez of 17 Main Street, and Julio Ramirez of 177 Mountain Ave.?")

  • damikesc||

    Not sure how this qualifies as a legislative act.

    And they clearly are not immune from penalties for legislative acts. If they are caught taking bribes for legislation, yes, they will be prosecuted.

  • damikesc||

    Not sure how this qualifies as a legislative act.

    And they clearly are not immune from penalties for legislative acts. If they are caught taking bribes for legislation, yes, they will be prosecuted.

  • Brightly||

    I agree about immunity of State Legislators. What I wonder about is if state prosecutors and law enforcement share the same immunity. I forsee a case in which they shouldn't with regards to the state ban on businesses cooperating with the federal government:

    Federal government subpoenas local business, local business complies. State of California threatens to charge said business for violation of these news bans on cooperating with the feds over immigration inquriies. Should the US Government be able to bring obstruction charges against local prosecutors and LEOs?

    I do not see how they have immunity in this case when the interfere with a federal investigation.

  • Brett Bellmore||

    The usual remedy for unconstitutional laws is simply to declare the law null, not to prosecute the legislators.

    But this IS an unusual case, of the sort we haven't seen since the Civil war, where the law isn't merely unconstitutional, but represents an active conspiracy on the part of legislators to oppose the federal government in an area where it has authority.

    Congress's immunity in this area is Constitutional. I'm not sure what actual written immunity state legislators have when they embark on insurrection.

  • TwelveInchPianist||

    I'm not sure what immunity state legislators have against the federal government. Surely it's possible for some things that legislators might do (commissioning the murder of a federal official) might be criminal.

  • FlameCCT||

    It might be hard to prosecute the legislators for creating these laws however the Mayor of Oakland, the CA AG, and others could be prosecuted for obstruction, civil rights violations, aiding & abetting criminals, etc.

  • M.L.||

    Trump + Immigration. A double whammy ensuring a high level of derangement from Somin.

  • bernard11||

    I agree with this, except for the last two words. It's the Trumpists who are deranged.

  • Brett Bellmore||

    We're so deranged we don't agree that a state can order a private entity not to admit federal officers onto their own property without a warrant?

    Seriously, if this law is upheld, there's no barrier against the state commanding that grocers not sell federal law enforcement food, that landlords not rent to them, that gas stations not permit them to refuel their vehicles without legal compulsion.

    It's very hard to overstate the extremity of the third law. It's just "this" much short of insurrection, or possibly over the line. We are absolutely in the run up to a civil war here, and that's no exaggeration.

  • Brett Bellmore||

    To make this really clear, suppose Arizona passed the same law, replacing "federal law enforcement" with "illegal immigrants". Think it would survive review for longer than the judge took to get over his spit-take?

  • UVaGrad||

    He says the administration has a plausible claim against the third law. Is the problem his failure to say "this is a lead-pipe cinch of a claim?"

  • Brett Bellmore||

    Pretty much. The third law is insane. It's just one step short of firing on Ft. Sumter. Only a legislature that was seriously on the verge of secession would even entertain it, let alone enact it.

  • swood1000||

    But even if the laws are declared unconstitutional they have signaled their virtue to those whose political support they crave. That could be all they ever thought would fly.

  • swood1000||

    I just can't wrap my mind around why the African American community is going along with this, or at least the African American leaders. Maybe they think that this is the quickest way to get the Democrats into power, and what they lose in the short term they can make up once they get into power.

  • Brett Bellmore||

    I recall reading a poll once that found that, on topics where blacks liked the Republican policy position better than the Democratic, instead of liking the Republicans better, they attributed the Republican policy to Democrats, and visa versa.

    At this point most blacks are so poisoned against the Republican party that they're not listening to the Republicans at all, or at all closely to the Democrats.

  • swood1000||

    At this point most blacks are so poisoned against the Republican party that they're not listening to the Republicans at all, or at all closely to the Democrats.

    So the view of the Democrats then would be that the worst case scenario when blacks are poisoned against Republicans but also realize that Democrat policies are working against many of them, is a lower voting rate but still in favor of Democrats.

    It's strange because as recently as the Clinton administration the Democrats were motivated to keep illegal aliens out in order to avoid increasing competition at the lower income levels. What caused the change in their calculation? Did they make their choice between illegal immigrants and blue collar whites?

  • M.L.||

    He also said California ought to win.

  • M.L.||

    He also said California ought to win.

  • NYLawyer||

    Even Chemerinsky is skeptical of the California law. Prof Somin is really unbalanced whenever the matter is Trump. The worst thing is his screeds may discourage other Conspiracists from addressing the laws and lawsuits he addresses.

  • kramartini||

    People don't stop being US citizens just because they live in California. Does California really think that they will prevail in an action against a California business owner who cooperates with the national sovereign?

  • swood1000||

    The threat of doing so is enough. How much will it cost a business to defend such an action, both in attorney's fees and bad publicity. Who's going to volunteer to challenge the statute?

  • FlameCCT||

    True. Although I'm surprised that businesses with HQs outside CA haven't banded together to file a class action lawsuit against CA.

  • Brett Bellmore||

    They know that the people pushing this in the legislature are very vengeful, bad people to get on the wrong side of. Perfectly willing to tank the state economy to punish any business that crosses them.

  • steeltown lad||

    There are several considerations for California businessmen. First, many businesses...agribusiness, sweatshop owners, and others....use and depend on illegal immigrants to keep labor costs down. They don't want ICE around and this statute gives them the perfect excuse. Second, major California employers..think Silicon Valley...are de facto open borders advocates, and don't want immigration enforcement at all. You won't hear a peep from them. Third, Calif. employers who do cooperate have been explicitly threatened by the California Attorney General with fines and litigation if they do not comply. Finally, the first California employer who openly resists the statute will be hit by social media flame wars, organized boycotts, and anonymous threats to kill his children on the way to school. Which hero would raise his head into the line of fire in the face of all that? Better to let the federal judge do the heavy lifting.

  • MonitorsMost||

    I think the first issue is the same question as is being decided in NCAA v New Jersey. Can federal law commandeer state legislation. I think the answer is no, but if the Supreme Court rules in favor of the NCAA then California should lose.

    Agreed that California wins issue number 2.

    I think California loses number 3 hands down. I don't think a state can prevent its private citizens from voluntarily cooperating with law enforcement. (If they can, then I'm going to lobby my state to pass a law making it illegal for people to talk to the FBI. Miranda isn't working so we might as well take the next step).

    If Sessions wants to be a dick, he can start arresting California officials involved with marijuana licensing for conspiracy to deliver drugs.

  • swood1000||

    Agreed that California wins issue number 2.

    Where does the state get the authority to demand to inspect federal records?

  • MatthewSlyfield||

    "Agreed that California wins issue number 2."

    How? The law is completely unnecessary if the state wants to inspect state and local government facilities housing ICE detainees, the state inherently has the authority to inspect such facilities whether or not they house ICE detainees..

    And while the law may be constitutional as to privately owned and operated facilities, from what I have read, there is no exception in the law for federally owned and operated detention facilities. So the California state government is claiming the authority to inspect federal government facilities.

    If California passed a state law requiring state inspection of military bases in California, do you imagine that law would be constitutional?

  • TwelveInchPianist||

    "If California passed a state law requiring state inspection of military bases in California, do you imagine that law would be constitutional?"

    I'm not sure the analogy works. Military bases are uniquely exempt from state jurisdiction. But I doubt that states can require federal authorities to cooperate with investigations, or provide them with access.

  • Brett Bellmore||

    No, not uniquely. Any place that the federal government buys with the approval of the state legislature is federal territory. Article 1, Section 8, paragraph 17:

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

    The bolded text seems to generally be ignored by the judiciary, I'd note. When the federal government hasn't gone that extra step, they're just an ordinary land owner.

  • Brett Bellmore||

    OTOH, the state's demand to inspect federal facilities ignores a different part of that clause: "exclusive Legislation in all Cases whatsoever".

    States can't regulate what goes on in federal facilities at all, according to the Constitution.

  • FlameCCT||

    No State can pass a law to inspect federal owned property. This is similar to embassy/consul property being the sovereign territory of the country. Now if the feds are leasing the building, property, etc. then with proper notification, a State can inspect the property to ensure it is meeting the State standards for property usage.

  • Brett Bellmore||

    I'm sure that Trump, as commander in chief, will gladly direct military bases in California to allot the ICE some space.

  • swood1000||

    As Justice Antonin Scalia explained in Printz v. United States, the purpose of the anti-commandeering doctrine is the "[p]reservation of the States as independent and autonomous political entities."

    This "anti-commandeering" doctrine, however, doesn't apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver's Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and "did not require state officials to assist in the enforcement of federal statutes," it was consistent with the New York and Printz cases. The Court said:

    "We agree with South Carolina's assertion that the DPPA's provisions will require time and effort on the part of state employees, but reject the State's argument that the DPPA violates the principles laid down in either New York or Printz."

    The Supreme Court in Arizona v U.S. also said "Consultation between federal and state officials is an important feature of the immigration system." It doesn't sound like they consider this type of consultation as a commandeering of the state by the feds.

  • shawn_dude||

    Doesn't "consultation" imply consent? If state officials withdraw consent, which is the case here, I don't see where the Feds can force it. Further, this is about federal use of state tax-funded resources, which would include the time required for local police to consult with ICE. How do you consult in an official capacity if you don't have the time?

    Requesting information isn't the same thing as assistance. If the feds request information through legal channels, the state gets to determine how the request is fulfilled. Just because you're entitled to make a request, doesn't mean you can make that request of anyone and dictate the details of the response.

    I think both of these set up an expectation that the federal police must treat the state government with some amount of deference while conducting lawful police work. They cannot run roughshod over local police or businesses in order to strong-arm cooperation.

  • swood1000||

    Doesn't "consultation" imply consent? If state officials withdraw consent, which is the case here, I don't see where the Feds can force it.

    The Suprme Court referring to consultation as an important feature of the immigration system seems to me to imply some sort of obligation on the part of the state.

    Further, this is about federal use of state tax-funded resources, which would include the time required for local police to consult with ICE. How do you consult in an official capacity if you don't have the time?

    This argument was rejected in Reno v. Condon, where the DPPA's provisions required time and effort on the part of state employees. See above.

    Requesting information isn't the same thing as assistance. If the feds request information through legal channels, the state gets to determine how the request is fulfilled.

    The point is that requesting information isn't commandeering and the state is not permitted to obstruct or slow-walk the information.

    They cannot run roughshod over local police or businesses in order to strong-arm cooperation.

    Is it your impression that the feds are guilty of this? As far as I can see the only thing they have been running roughshod over is the utter refusal to cooperate.

  • Michael Cook||

    In April California reportedly intends to pass a law requiring that a CA motor vehicle license or equivalent personal ID issued by the DMV alone will be sufficient basis to vote in California. No reference or deference to any citizenship requirement.

    This ought to be in some type of defiance of federal election law and one would expect that the federal government should have some type of remedy it could take before election time this November.

    Yes? Maybe?

  • shawn_dude||

    This is "fake news."

    California is in the process of complying with the federal "Real ID" requirements. A California drivers license that complies with Real ID establishes citizenship (in whatever country) as part of the process. The license itself will clearly mark whether or not it is a "Real ID" compliant license. Non-compliant licenses can still be issued and are only valid for driving and not for any other identification purpose.

    https://www.dmv.ca.gov/portal/dmv/detail/realid

    There is no voter ID law in California.

  • bernard11||

    Stop dignifying lies by calling them "fake news."

    Cook got this from some fever-swamp source, and he needs to be called on it.

  • Careless||

    You're confused. the issue is them auto-registering everyone who gets a license. There's apparently a box to check that indicates illegal immigrant, which would cut them out from being registered. If they're getting licenses using their stolen identities, and I have no idea how many, if any, of them do that, they'd be registered.

  • Brett Bellmore||

    "There's apparently a box to check that indicates illegal immigrant, which would cut them out from being registered."

    That sounds deliberately drafted to allow the illegal immigrants to claim the Fifth if they fail to check it. Why not a box to check to indicate you're here legally? The Fifth doesn't protect affirmatively lying, but it does protect refusal to tell the truth.

  • Mark22||

    There is no voter ID law in California.

    It's not about "voter ID" but voter registration.

    This is "fake news."

    Yes, Shawn, your comment certainly was fake news.

  • swood1000||

    The new lawsuit also targets California Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court date or deportation.

    The DOJ's answer is that information obtained or developed as a result of an agreement with the detention facility are federal records under the control of ICE for purposes of disclosure and are subject to disclosure only pursuant to applicable federal information laws, regulations, and policies, including but not limited to the Freedom of Information Act, 5 U.S.C. § 552 et seq., and 8 C.F.R. § 236.6.

    The DOJ could be rejecting on principle the claim that a state has a right to demand, on their own terms, to inspect federal records, but they probably also feel that the more access California has to these records the greater will be their ability to obstruct federal immigration work.

  • shawn_dude||

    I read this as a physical inspection of the facility rather than of records within the facility.

  • swood1000||

    According to paragraph 39 of the DOJ's complaint:

    The statute is not limited to an inspection of facilities. The law also requires the California Attorney General or his designee to examine the "due process provided" to civil immigration detainees, and "the circumstances around their apprehension and transfer to the facility." Cal. Gov't Code § 12532(b). Section 12532(c) instructs that the California Attorney General or his designee "shall be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records."
  • jph12||

    It's more than just a physical inspection. The attorney general is also supposed to review the due process available to the detainees and the circumstances of their arrest and transfer. I don't know that it's enough to tip the scales, but it makes the federal claim of possible interference seem stronger (especially at the private institutions).

  • bernard11||

    So Sessions is worried the federal treatment of detainees will be publicized.

    These guys aren't Nazis, but it's not for lack of ambition.

  • jph12||

    Bless your heart.

  • bernard11||

    Thank you, jph12.

    Let me tell you what I think. I think that in a few decades Americans will look back on the way these people are being treated with shame. You disagree? Fine. I am unlikely to live to see it. If you are younger then you'll find out if I'm right or wrong.

  • MatthewSlyfield||

    I agree with you, but that doesn't give the state of California the authority to do anything about it.

  • jph12||

    "I think that in a few decades Americans will look back on the way these people are being treated with shame."

    Tell me, when did this shameful treatment begin? Was Obama an aspiring Nazi too? W? Clinton? How far back do the aspiring Nazis go?

  • Finrod||

    All the Presidents are Nazis. Didn't you know? Even Washington.

  • Brett Bellmore||

    " I think that in a few decades Americans will look back on the way these people are being treated with shame."

    I think it rather more likely that Americans will look back in a few decades and think, "If only we'd expelled the lot of them while we still had the chance." You know, basically the position Europeans are arriving at now? We're just a couple decades behind them, and some of us don't want to learn from their mistakes.

    But that's for my son to find out, not me, baring major advances in gerontology.

  • Nige||

    This Brett fully embraces xenophobia and brutality.

  • MatthewSlyfield||

    Expelling them is no excuse for keeping them in deplorable conditions while they are awaiting deportation.

  • Careless||

    Remember how you guys called Bush II and McCain and Romney Nazi fascist scum and wound up getting Trump because of it? Why are you still digging?

  • MatthewSlyfield||

    Because it is in their nature to keep digging until they find themselves trapped in their own hole.

  • Nige||

    Remember when you guys blamed everybody but yourselves for being shitty human beings and electing increasingly shitty human beings to positions of power? You did it because that's what shitty human beings do. You're just being shitty. Own it.

  • bernard11||

    Ah yes.

    Trump is all the Democrats' fault. Conservatives and Republicans just couldn't help themselves. They lack any ability to form intelligent independent judgments.

    That's the argument, isn't it? If only Romney had won we wouldn't have Trump, so Obama voters are to blame for this completely disgraceful, criminal, administration. What a load.

    You guys did it - all of you - including even the so-called NeverTrumpers. Own it.

  • jph12||

    You still haven't answered, when did this shameful treatment begin? Was Obama an aspiring Nazi too? W? Clinton? How far back do the aspiring Nazis go?

  • swood1000||

    Moreover, there is an important difference between Arizona's effort to penalize undocumented immigrants more harshly than Congress intended, and California's sanctuary law, which merely limits state and private assistance to immigration enforcement. …Unlike Arizona, California isn't trying to regulate immigrants (the targets of the federal immigration law). It just restricts the extent to which state officials and private employers assist the federal government in its law enforcement operations.

    So is the point here that Arizona's attempt to treat undocumented immigrants more harshly than Congress intended is an impermissible attempt to regulate immigrants, but California's attempt to treat undocumented immigrants more permissively than Congress intended is not an attempt to regulate immigrants?

  • bernard11||

    Yes.

    How is being more permissive than the federal government would like regulating immigrants? Sounds like it's not regulating immigrants.

  • FlameCCT||

    A State can neither be more permissive nor more stringent in regards to immigrants, legal or illegal. IAW the Constitution, only Congress has the authority to regulate Immigration and Naturalization; not the President nor any State legislature nor any Governor.

    The difference is that Arizona exceeded Congress in a few areas of their law while the rest was left in place while CA exceeds Congress in all of their laws.

  • Allutz||

    The problem with Ilia's quote there is he 100% softpeddles Arizona.

    >there is an important difference between Arizona's effort to penalize undocumented immigrants more harshly than Congress intended

    A false characterization of Arizona which actually says, "Arizona's efforts to penalize undocumented immigrants exactly as Congress intended, but not as an Executive order made my the President prefers" is not allowed. The mere preference of the President without Congressional support outweighs state preferences on immigration.

  • Brett Bellmore||

    Right, that's the thing about the Arizona case. Arizona wasn't opposing federal law. They were acting in opposition to a Presidential policy that itself was contrary to federal law.

    In a world where the Supreme court cared about the actual language of the Constitution, it would have been Arizona, not the feds, citing the Supremacy clause in court.

  • DKWalser||

    This is the wrong way to frame the issue. Arizona was trying to enforce laws enacted by Congress that successive administrations had failed to enforce. This was wrong for Arizona to do because immigration policy -- including whether the laws are to be enforced -- is the exclusive domain of the federal government.

    California is actively trying to obstruct federal enforcement of immigration law. California would be fine if it stayed out of immigration entirely. It's not doing that. It's chosen sides and is actively working against the federal government's (current) policies. Again, since immigration policy is the exclusive domain of the federal government, California should not be allowed to take any action designed to undermine federal immigration policy. That doesn't mean the federal government can require California to assist it in enforcing immigration policy; it just means that California cannot actively obstruct that policy.

  • BillyG||

    If the law was passed with Animus, which it clearly was, isn't that unconstitutional? If the inspections are only to harass, aren't they also unconstitutional? How can the state prohibit voluntary communication with the federal government? 1st amendment violation there, isn't it?

    Also, you say they "deserve to lose" is that because of your Animus against the administration or is it based on a legal argument? You keep using so many emotional pleas without any legal argument it's so hard to keep track of what you think is lawful and what you don't.

  • Ken Arromdee||

    Moreover, such inspections do not prevent the federal government from detaining undocumented migrants or otherwise enforcing federal law. The only way they could end up limiting detentions is if the inspections reveal that federal officials were abusing prisoners or violating the Constitution or federal law in other ways.

    I'm pretty sure Ilya would never say something similar in a lot of other contexts. "Allowing the police to search your car without a warrant won't cause any problems unless you have evidence of a crime in your car."

    It's possible for the state to use inspections to harass just from the inconvenience of the inspections. It's also easy for the inspector to "find" something on an innocent target that looks just barely suspicious enough that the state can initiate a burdensome procedure where the target has to use a lot of time and money to prove his innocence.

  • bernard11||

    Of course, the state might also find real abuses. That's hardly unheard of in these facilities, and you can bet DOJ doesn't care.

  • jph12||

    As opposed to the California state prison system, which is totally known for its cuddly treatment of its guests.

  • PoxOnBothYourHouses||

    "As opposed to the California state prison system, which is totally known for its cuddly treatment of its guests."

    And we have a winner!

  • FlameCCT||

    Apparently bernard hasn't heard of San Quentin, Pelican Bay, et.al. with serious violations not to mention the overcrowding issues.

  • damikesc||

    Of course, the state might also find real abuses. That's hardly unheard of in these facilities, and you can bet DOJ doesn't care.

    The cops MIGHT find drugs in your car.

  • swood1000||

    On a slightly different topic, the DACA deadline has passed and it is said that the President is stymied by court orders preventing him from rescinding the DACA executive order. But isn't it true that only about 800,000 of the 1,800,000 eligible "Dreamers" signed up for DACA? So wouldn't the other 1,000,000 be subject to deportation, since the court order only protected those who signed up for DACA?

    This really appears to be academic since neither side wants to actually deport the Dreamers, but it seems that if Trump started deporting some of the 1,000,000 non-DACA Dreamers it might light a fire under the negotiations, since these people would be admitted under his proposal. [Begin outrage at the very idea that the citizenship of these people should be held hostage to the desire to reform the immigration laws.]

  • bernard11||

    If nobody really wants to deport them, why can't there be a simple agreement that they won't be deported?

    Instead, Trump and the GOP want all sorts of other things attached, so ISTM they really do want to deport them.

    The basic argument seems to be, "Deporting the dreamers is a terrible idea, but we're going to it anyway unless you agree to some really dumb stuff, like that wall.

    Where is that check from Mexico, by the way?

  • TwelveInchPianist||

    "If nobody really wants to deport them, why can't there be a simple agreement that they won't be deported?"

    Why?

    In any event, it's not just deportation, it's their ability to work legally that's at stake.

  • Krayt||

    They are hostage to...The Wall. Nobody stops...The Wall!

    He threw a softball but the Dems ain't swinging. Both sides sit back and facetiously discuss pointless asides.

  • JesseAz||

    After years of being on voloks sites you still remain ignorant of the arguments against daca. Even after the fifth. It is the positive benefits, ie work permits, that make daca illegal. There is no federal law that gives the president this power.

  • swood1000||

    There is no federal law that gives the president this power.

    The following gives apparent cover for this:

    8 CFR 274a.12 Classes of aliens authorized to accept employment.

    (a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States …

    (11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive;

  • PoxOnBothYourHouses||

    bernard11: "If nobody really wants to deport them, why can't there be a simple agreement that they won't be deported?"

    There's that little matter of the law....

  • bernard11||

    Of course. What I mean is a simple agreement passed by Congress and signed by Trump.

  • MatthewSlyfield||

    "If nobody really wants to deport them, why can't there be a simple agreement that they won't be deported?"

    Because everyone wants to preserve the issue for the next election. If there is a firm agreement to not deport the dreamers, then they can't fight over the issue in the next election.

  • Brett Bellmore||

    Because "simple agreements" aren't legally enforceable, and so are subject to being violated at any time.

    A "simple agreement" was what they already had. It didn't survive the election of a President who wasn't party to it.

  • PoxOnBothYourHouses||

    swood1000: "but it seems that if Trump started deporting some of the 1,000,000 non-DACA Dreamers it might light a fire under the negotiations, since these people would be admitted under his proposal."

    He might as well. Though I doubt the Democrats will to do anything to save them. It seems clear (to me at least) that they're completely ready to throw the Dreamers under the bus in order to score points for upcoming elections.

  • DKWalser||

    At least one of the federal district court orders barred the administration from ceasing to accept applications from the remaining 1,000,000 eligible Dreamers. It's unclear how many of those 1 million the courts would allow Trump to deport if all they lack is a little paperwork (which they may be granted leave to file once detained).

  • swood1000||

    According to the National Immigration Law Center only renewals are being mandated as a result of District Court action.

    Can I submit a first-time application for DACA?

    If you have never had DACA before, you may not submit an application now. Only people who have had DACA at some point in the past can submit a renewal application.
  • DKWalser||

    Then my memory failed me. Thanks for the correction.

  • damikesc||

    And I'd argue courts, 100%, do not have the power to force that.

    It is patently absurd that an executive action with zero legislation behind it cannot be undone by a subsequent executive. Trump needs to start ignoring these idiotic decisions and just do it. If the courts wish to act illegitimately, they should be treated illegitimately.

  • swood1000||

    It is patently absurd that an executive action with zero legislation behind it cannot be undone by a subsequent executive.

    The really odd thing is that DACA deferrals that are by their own terms temporary should be held by a court to give rise to an expectation that they will be renewed forever, and therefore must be renewed forever.

  • swood1000||

    "Fair weather federalism" is a long-standing problem on both sides of the political spectrum.

    Does it distort too far any reasonable idea of federalism to suggest that states do not have the authority to nullify federal immigration law and establish their own?

  • DjDiverDan||

    "It is far from clear which way federal courts will ultimately rule."

    These federal courts are in the People's Republic of California. And this is TRUMP. So, even if the DOJ is lucky enough to draw a favorable District Court Judge, i.e., one who takes seriously his or her duty to rule impartially and according to law (and there a few of those, even in California), I think it's pretty clear which way the Ninth Circuit will rule - Trump loses. Because who gives a damn about the law or the facts when it's TRUMP (Gasp!).

    That having been said, you actually think that there's even a colorable non-frivolous argument to support Bill 450, prohibiting private parties from cooperating with the Federal Government on immigration matters without a warrant or subpoena? I can see the arguments for the other two bills, but no way is that requirement, prohibiting voluntary cooperation with federal law enforcement, even remotely lawful.

  • tkamenick||

    Far more troublesome on the third law being challenged than preemption questions is whether a state even has the power to forbid private employers from sharing information with the federal government

  • Michael Ejercito||

    So California is using the threat of sending men with guns to deter people from cooperating with federal authorities.

    And this is different than when the Crips, the Mafia, or MS-13 does it because...

  • MatthewSlyfield||

    Look squirrel!

  • PubliusVA||

    With the latter it's "snitches get stitches." With the former it's "snitches get sentences."

  • azbadger||

    A question: why are those who run sanctuary states and cities not in violation of 8 USC 1324(a)(1)(A)(iii) and (iv)?

  • swood1000||

    A question: why are those who run sanctuary states and cities not in violation of 8 USC 1324(a)(1)(A)(iii) and (iv)?
    1324(a)(1)(A) Any person who—
    (iii)
    knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; …

    shall be punished as provided in subparagraph (B).

    The subparagraph (B) penalty for this is a fine under title 18 and/or imprisonment for up to 5 years. However,

    (iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
  • AmosArch||

    One clerk of a States/Local authority not performing SSM == active interference with Federal Law WORLDWIDE FRONTPAGE HEADLINE, TOP 10X CABLE NEWS CYCLES, WEEPING STONY FACED JIMMUH KIMMEL, TWITTER AND SOCIAL MEDIA IN GLOBAL UPROAR DESTROY DESTROY DESTROY

    States/Local authorities actively hiding and tipping off immigrant criminals (beyond just crossing the border), offering financial and material encouragement to break the law, tampering with criminal records and sentencing to intentionally frustrate possible deportation of violent felons among others, passing laws to bar cooperation of public and private entities and individuals with federal authorities. Doubling down on policy despite resultant violence and murders. Openly bragging about said flouting of Federal authority and wearing the title as a badge of honor. == no big deal, nothing wrong, just another day in paradise in Ilyanist Federal/State/Municipal interface theory.

  • jph12||

    No, whatever you think of these laws, Kim Davis was violating the individual rights of the people she refused to serve. There were no federal laws involved.

  • AmosArch||

    The printer must have ran out of ink when it got to the part about the fundamental human right to get an official government marriage certificate from Kim Davis of 21st century Kentucky on my copy of the Constitution.

  • Mark22||

    The US Constitution doesn't grant the power to perform marriages to any branch of the US government.

  • Krayt||

    Government may not deny a right merely because it cannot find an official willing to secure it. As the elected head of that area, she was on the ultimate hook, either do it, or find someone who will.

  • azbadger||

    Then what law did she violate? She did not violate a statute granted, but Supreme Court decisions are the law.

  • AmosArch||

    You don't understand, she didn't violate any law so she has to lose her job, and be thrown in jail, and have her life destroyed permanently. Whereas sanctuary states/cities violate numerous laws constantly for years on a massive institutional scale resulting in numerous deaths so everything is fine there. #Democratsthepartyoflogicandrationality.

  • jph12||

    "You don't understand, she didn't violate any law so she has to lose her job, and be thrown in jail, and have her life destroyed permanently."

    She did not lose her job, and is now the County Clerk instead of the Chief Deputy Clerk (that's a promotion!), so it doesn't sound like she has quite been destroyed. She won an election, as a Democrat, in 2015. She was briefly thrown in jail, but that was for contempt of court.

    And the State of Kentucky, the responsible party for the whole mess, has since decided that county clerks don't have to sign marriage licenses.

  • jph12||

    "The printer must have ran out of ink when it got to the part about the fundamental human right to get an official government marriage certificate from Kim Davis of 21st century Kentucky on my copy of the Constitution."

    So does your copy stop at the Twelfth or Thirteenth Amendment? You might want to get a copy published after 1992--there's been a couple of other amendments you might be missing.

    And its not their fault that the State of Kentucky required them to have an official government marriage certificate signed by Kim Davis in order to be married. You want to rage, rage against the party responsible (that would be the State of Kentucky).

    "Then what law did she violate? She did not violate a statute granted, but Supreme Court decisions are the law."

    She violated the individual rights of the people she refused to serve (the people she works for), rights that are secured by the Constitution. That's not nearly the same thing as claiming a state law is unconstitutional because it interferes with a federal law. Misguided or not, these laws are not violating anyone's individual rights.

  • Careless||

    What does 1992 have to do with this, anyway?

  • jph12||

    The enactment of the Twenty-Seventh Amendment. I just want to make sure his new copy of the Constitution is up to date.

  • AmosArch||

    I'm confused, are you saying theres some alternate superseding set of rules out there that US government officials are legally compelled to obey but aren't called laws? Wow, I had no idea. Admittedly I don't have a fancy law professor chair like some here.

  • jph12||

    "I'm confused"

    Obviously.

    "are you saying theres some alternate superseding set of rules out there that US government officials are legally compelled to obey but aren't called laws?"

    Yes. The Constitution. The Second Amendment isn't a law, but US government officials aren't permitted to violate it. You might be a little confused because the Constitution, and the federal laws made pursuant to the Constitution, are the Supreme Law of the Land. But that doesn't make the Constitution a collection of laws.

    "Wow, I had no idea."

    You are most welcome.

  • AmosArch||

    law: (noun) Any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its (constitution.)

    I'll give you a quick refresher; the constitution can be thought of as being or containing a set of laws. Hence kim davis was to some degree allegedly in violation of the part of the constitution written in invisible ink that specifies a right to gay marriage certificates.

    Getting back to the actual point even if we accept your semantic argument where you seem to be confusing law as an abstract object and the concept of force of law, theres still little relevant difference between our two examples other than the immigration law flouting is far more severe. People could just as easily claim their right to speech or not being murdered was being trampled by one of the many different laws the sanctuary jurisdictions are passing.

  • Brett Bellmore||

    "The Second Amendment isn't a law,"

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law

  • jph12||

    of the Land. You stopped a bit short.

    From Black's Law Dictionary:
    Law of the Land: "The collection of traditions, customs, statutes, usages, and laws of a country that apply to everyone, including the government, under the jurisdiction of its courts. Also refer to legal system."

    Not that it matters. Call the Fourteenth Amendment a law for all I care. Kim Davis's problem was that she was a government employee who did not want to provide services that the public was entitled to. She was sued by individuals for violating their rights. In this case the federal government is suing California for interfering with its enforcement of its laws. That's different. If an employer in California sues the state, that would be analogous to the Kim Davis situation.

  • FlameCCT||

    Actually no, SCOTUS decisions are not the law; only State legislatures or Congress can pass legislation and signed by State Governor or President before becoming law. SCOTUS can find a law violates the Constitution (basically throwing out the law) however they cannot create new law(s) nor rewrite law(s). Davis legally could not sign a marriage certificate for a same-sex couple as there was no legal authority to do so until the legislature created a new law authorizing said action.

    I would also note that the couple in that case should not have had standing in court as they were CA residents not KY residents.

    However I'm surprised that no one uses that SCOTUS precedent (SSM regardless of State law(s)) to force CA and other States to allow open or concealed carry of firearms.

  • ReaderY||

    I think I'm inclined, after the dust settles, to more or less agree with Professor Somin's assessment of the likely outcome.

    There are three basic principles the Court has established:

    1. The federal government cannot commandeer a state's resources against its will.

    2. A state cannot obstruct the enforcement of federal law.

    3. Immigration is an exclusively federal matter, and Congress has occupied the field to the exclusion of state policies.

    Under these principles:

    1. The state law prohibiting state employees from participating in immigration matters probably stands. The state gets to control what its employees spend their time on.

    2. The state law fining provate parties for cooperating with federal immigration authorities almost certainly fails. This is pretty obstruction of federal enforcement. The people are not state government employees.

    3. The state law on state inspection of immigration facilities is arguable. However, In my view it also probably fails. I think the Arizona case increases the scrutiny these state laws are given. Imposing state standards on federal facilities and inspecting for them appears to me to be interference with federal enforcement.

  • Brett Bellmore||

    The problem is that the first law even prohibits, as I understand it, state employees from contacting federal immigration authorities on their own time.

    California can probably get away with ordering a jail guard not to call ICE while they're on the clock. Ordering them to not contact ICE while on lunch break, or in the evening? That's more of a stretch.

  • Don Nico||

    I'm curious about #3. The California CA sends inspectors to a facility it owns but is operated by ICE. ICE refuses to let the inspectors in.

    Then what? The state uses force against lawful federal agents. Let's see how that plays out.

  • swood1000||

    Then what? The state uses force against lawful federal agents. Let's see how that plays out.

    If the state has special rights when it owns the facility then ICE moves all these people out of state-owned facilities.

  • MatthewSlyfield||

    "The California CA sends inspectors to a facility it owns but is operated by ICE. "

    My understanding is that no such facilities exist.

    There are CA state prisons that house ICE detainees on contract with the federal government but ICE is not directly operating those facilities and those facilities have non-federal prisoners as well as ICE detainees.
    .
    There are county jails in California doing the same thing. Again, they are not being directly operated by ICE and they

    The law being challenged is completely unnecessary for California officials to inspect either of the above types of facilities.

    There are privately owned and operated facilities that house ICE detainees on contract with the federal government. The state of California may have the authority to a physical inspection of the facility, but would still not have the authority to inspect ICE records held at those facilities.

    Then there are federally owned and operated facilities. There are 11 federal prisons in California.

    I'm quite sure ICE owns and operates at least a few of the detention facilities that they use in California.

  • PubliusVA||

    "1. The state law prohibiting state employees from participating in immigration matters probably stands. The state gets to control what its employees spend their time on."

    Could a state prohibit its employees from reporting federal civil rights violations to the feds (e.g. violations of 18 USC 242)?

  • Sarcastr0||

    I don't like the commandeering doctrine at all, but I agree 1 and 2 seem to fall within that. Even if Brett's analysis is true, that's as an 'as-applied' anyhow.

    The lawsuit, of course, is secondary to both sides being able to insult the other as bad and rile up the base. Everyone's a winner!

  • Krayt||

    3 Failing would be a good thing if the court ruled it was for harassment purposes rather for sweet, clean facility purposes, especially if it yided a higher scrutiny standard for inspection regulations.

    The primary practical purpose of these laws in most countries is to enable corruption. Here that is partly licked, as long as you don't count legal bribes of political donations.

  • swood1000||

    1. The state law prohibiting state employees from participating in immigration matters probably stands. The state gets to control what its employees spend their time on.

    No. The Supreme Court held unanimously in Reno v. Condon (2000) that state employees were required to provide driver's license info to the feds pursuant to the Driver's Privacy Protection Act even though this required time and effort on the part of state employees.

  • Allutz||

    I don't see Prof Somin's points with regards to count 2. That is clearly state interference with how the federal government chooses to run its own facilities. Basically California is attempting a reverse-commandeering. Indeed that kind of meddling has been struck down dozens of times. One notable time is in US & Mesta v. Allegheny where they held,

    "The Tax Law of the Pennsylvania, as interpreted and applied in this case, violates the Federal Constitution insofar as it purports to authorize taxation of the property interests of the United States "

    IMO the US wins on 2/3 counts if its ever at SCOTUS, but the suit to me seems unserious, so it probably wont be there.

  • ReaderY||

    There has, in past decades, been a tendency to regard the federal government as on the side of right and justice, and the states as on the side of darkness and evil.

    If an Alabama had passed laws prohibiting state officials and private parties from cooperating with federal civil rights enforcement and had subjected facilities where civil rights enforcement takes place to state inspection, we would probably see a court decision resembling AG Sessions' brief, presenting the state actions as quasi-criminal obstruction of justice and bringing the full fury of the federal government down on them.

    The 9th circuit has clearly been uneasy about the justice of recent federal enforcement actions. Whether that's apprkpriate or not, one thing a case like this, where the federal lawyer is using civil rights tropes, including the evils of state obstructionism, in support of policies that are not obviously on the side of civil rights, is that it illustrates the problems of our tendency to see our neighbors as pure good or evil, rather as people having legitimate disagreements.

    Sometimes recognizing the possibility that both sides in a debate may have a point, and may have a right to try to make a point, does not necessarily represent craven judicial restraint or a lack of commitment to justice. Sometimes it represents a wise and mature point of view.

    Here I hope the 9th circuit will resolve the issue in a way that avoids crowning one side as good and tarring the other as evil.

  • Sarcastr0||

    Your first paragraph seems to contradict your second.

    Your bothsideshaveapoint urging is pretty facile ('The court recognizes both sides have a point.' Oy.)

    But, ruling-wise, that is actually often how courts (and juries) rule. Mixed rulings are more common than sweeping, especially when there are disparate laws being challenged, as here.

    Not that it would matter - this isn't about the court rulings anymore, not really.

  • ||

    I was puzzling over the similarities and differences between this and Arizona, and I think you got it right:

    'The Arizona law, as the Court described it, "interfere[es] with the careful balance struck by Congress with respect to unauthorized employment of aliens." By contrast, the California laws leave the federal government free to strike whatever balance it wants, so long as it relies on its own resources to do so. Unlike Arizona, California isn't trying to regulate immigrants (the targets of the federal immigration law). It just restricts the extent to which state officials and private employers assist the federal government in its law enforcement operations.'

    Thanks.

  • Brett Bellmore||

    Except that the balance in question in Arizona wasn't struck by Congress. The administration was deliberately not enforcing the laws Congress had enacted, which are the only legitimate indication of "the balance struck by Congress".

    I'll continue to say it: If the judiciary actually cared what the Constitution says, it would have been Arizona citing the Supremacy clause, not the federal government. Because the Supremacy clause makes federal law supreme, not "policy", and nothing Arizona was doing ran contrary to federal law. Quite the opposite, it was federal policy that violated the law.

  • DKWalser||

    "Unlike Arizona, California isn't trying to regulate immigrants (the targets of the federal immigration law). It just restricts the extent to which state officials and private employers assist the federal government in its law enforcement operations.'"

    That's a very charitable view of what California is doing. A more accurate view, based on what they themselves have said, is that the state is actively resisting the federal government's law enforcement operations. California has not adopted a neutral position; it is actively seeking to undermine federal immigration policy. That is no more permissible than what Arizona tried to do.

  • swood1000||

    Unlike Arizona, California isn't trying to regulate immigrants (the targets of the federal immigration law). It just restricts the extent to which state officials and private employers assist the federal government in its law enforcement operations.'

    If the federal government wants regulation and level A and California obstructs in order to produce regulation at level 0.1 A, how can it be said that California is not trying to regulate?

  • bc15||

    Re: Assembly Bill 450. Isn't regulation of commerce within state borders a power reserved for the States? If a State believes that private employer cooperation with ICE officials would be detrimental to commerce, and no federal law requires such cooperation, then why shouldn't States be able to impose such regulation? Isn't the test for such economic regulation rational basis, a low bar? The regulation does not, as some commenters have claimed, prevent private citizens, in their capacity as citizens, from cooperating with ICE. The law applies to *employers* and is, thus, part of economic regulation. For better or worse, government has much more power to infringe economic freedom than personal freedom. If a citizen would like to cooperate with ICE, he is free to do so. He just can't employ workers under California's business regulations.

  • bc15||

    On the subject of employment, what power in the Constitution gives the federal government power to prevent employment of illegal aliens in *intra*-state commerce? The unenumerated power to regulate immigration is assumed to be an "inherent" power. However, that power is the power to decide who is allowed to enter and under what conditions. The government has not granted illegal immigrants permission to enter, so one can't claim that their admission was granted on condition of refraining from employment. Once in the country, whether or not they work has no bearing on whether or not they enter the country --- they're already here --- nor does working imply that the federal government cannot deport them. Employers, who are not illegals, can be punished under these laws even though the employers did not aid the immigrants to enter the country nor aid them in avoiding ICE. Employers simply engage in commerce with the immigrants once here. Thus, laws prohibiting employment of illegal immigrants are regulating *employment* rather than immigration per se. If the commerce in question is purely intra-state, then why would such regulation fall under the purview of Congress?

    The unenumerated power to regulate illegal immigrants' participation in intrastate commerce would be an additional power on top of the already unenumerated power to regulate immigration. Do originalists and conservatives really want to read even more unenumerated powers into the Constitution?

  • Brett Bellmore||

    Article 1, Section 9, paragraph 1:

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

    It being after 1808, I think the federal government clearly has authority to prohibit these people from being here. Prohibiting them from being employed while they're hunted down and expelled?

    It's far less of a stretch than a lot of N&P jurisprudence. (Which is more of a "Convenient, and Eh, Whatever" jurisprudence.)

  • bc15||

    Well, we're not talking about slavery, so the quoted provision doesn't apply. Regardless, as I already stated, employing illegal immigrants doesn't preclude them from being deported. Prohibiting employment is not Necessary for keeping illegal immigrants out of the country, as evidenced by the fact that the illegal immigrants in question are already in the country.

    If the federal government can't commandeer state and local government resources to enforce immigration law, then how can it commandeer private employer resources, such as requiring employers to spend money investigating workers' immigration status?

  • Brett Bellmore||

    I didn't say it was a valid reading of the N&P clause, just that it was less of a stretch than a lot of judicial readings of it. Is this likely to be the one case where they actually require a law to be both necessary and proper?

  • swood1000||

    If the federal government can't commandeer state and local government resources to enforce immigration law, then how can it commandeer private employer resources, such as requiring employers to spend money investigating workers' immigration status?

    Commandeering refers to requiring the state to do the work of the federal government. Reno v Condon, for example, held that requiring state employees to learn and perform the requirements of the Driver's Privacy Protection Act, which required the disclosure of some personal details about license holders, did not constitute commandeering, since it "did not require state officials to assist in the enforcement of federal statutes."

  • PubliusVA||

    "Isn't regulation of commerce within state borders a power reserved for the States?"

    If only. The Supreme Court has ruled that growing wheat on your own land for use on your own land is subject to regulation as "interstate commerce."

  • bc15||

    Yes, but we're not questioning the constitutionality of a federal law requiring employers to disclose information to ICE. We're questioning the validity of a state law not to disclose information when disclosure *isn't* required by federal law. States obviously impose all sorts of economic regulations beyond federal regulations, right?

    If an employer and employee privately negotiated a non-disclosure agreement (NDA) in which the employer agreed not to disclose Confidential Information to ICE unless required by law, wouldn't such a provision be legally enforceable? States can require that all sorts of provisions be *required* as part of any employment contract, including non-written verbal contracts. For example, states can require employers pay wages above some minimum wage, provide for worker safety, and limit hours worked. Why can't a state also require certain NDA provisions if it believes such NDA provisions facilitate commerce? Why inhibit our 50 laboratories of democracy from experimenting with various employment laws to see which work best?

  • MatthewSlyfield||

    "If an employer and employee privately negotiated a non-disclosure agreement (NDA) in which the employer agreed not to disclose Confidential Information to ICE unless required by law, wouldn't such a provision be legally enforceable?"

    No, such a provision would probably not be enforceable in regards to employer knowledge of violations of the law by the employee (i.e. not having valid immigration status). Contracts to commit illegal acts are generally void. Hiding illegal aliens from the federal government is itself illegal.

  • bc15||

    Question refers to information that employers are *not* required by law to disclose. It certainly can't be illegal to keep confidential information that is legal to keep confidential. Assembly Bill 450 doesn't prohibit employers from cooperating with ICE when they are required to do so by law. It only requires that employers exercise their legal option not to cooperate when such legal non-cooperation option is available.

    States would seem to have a legitimate interest in regulating employment to assure that employers safeguard confidential information rather than needlessly disclosing such information even when not required to do so by law. Different states may reach different conclusions about what types of confidential information should be protected. That's why we have federalism.

  • MatthewSlyfield||

    1. It isn't exactly legal to keep knowledge of violations of law confidential.

    2. Assembly Bill 450 goes further than you think. Cooperation in certain matters could be proactively required by statute or contract if the company does business with the feds, but AB 450 prohibits cooperation absent a warrant or court order.

  • swood1000||

    Question refers to information that employers are *not* required by law to disclose. ...It only requires that employers exercise their legal option not to cooperate when such legal non-cooperation option is available.

    But when is legal non-cooperation available? AB 450 prohibits private employers in California from voluntarily cooperating with federal officials who seek information relevant to immigration enforcement that occurs in places of employment. This prohibits allowing entrance to the property without a judicial warrant or providing access to employee records without a subpoena or warrant.

    If it is true, as the DOJ claims, that such inspections with the consent of the employer are critical to investigating cross border smuggling of people, narcotics, and terrorism, then why wouldn't such refusal be a violation of 8 U.S. Code § 1324, concerning harboring aliens?

    knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation; … or… aids or abets the commission of any of the preceding acts
  • Jerry B.||

    "The Supreme Court has repeatedly ruled that the federal government may not "commandeer" state and local officials by making them to [sic] enforce federal law."

    Hmm. So if Ohio, say, wanted to institute slavery, the Federal government couldn't force the State, or it's minions, to enforce the 13th Amendment, couldn't look at the State registry of who owns slaves, nor could it ask people to voluntarily indicate to it who owns slaves.

    Who says States rights is dead?

  • Brett Bellmore||

    I'd say the non-commandeering law will be partially upheld, probably not the part commanding state employees not to talk to federal law enforcement on their own time, but the part ordering them not to do it on the clock is straightforward non-commandeering.

    The inspection law runs directly afoul of Article 1, Section 9, paragraph 1, giving Congress exclusive lawmaking authority over federal facilities. It's DOA when it reaches the Supreme court.

    And the law commanding private entities to not cooperate with federal law enforcement unless compelled by a warrant or subpoena is so batshit crazy even the 9th circuit is unlikely to uphold it.

  • Sarcastr0||

    I don't think it's anywhere near that cut and dried. One can argue that immigration is a unique part of the Fed's ambit. If there is an exception to anti-commandeering be made, this is where it would be.

    But given the Supreme Court's makeup at the moment, I suspect it won't be anything quite that sweeping.

    I don't track SCOTUS DOA for the inspection one either, though that's a much more dull case to me. As in the OP 'Some of these facilities are owned by the state or local governments, while others are controlled by private contractors' not federal facilities at all, then.

    The third one seems crazy to me as well, but the same sort of crazy that anti-commandeering is, especially given the 'cannot undermine' language of the Arizona case. So while I would bet against it being upheld, I think it's an interesting one, and not quite as obvious as you do. Some pretty sweet poisoning of the well about the 9th decision on that one though!

  • Brett Bellmore||

    Anti-commandeering is a straightforward consequence of the states' partial sovereignty, and enumerated powers: The states being separate sovereigns, they can't be commanded save in ways that the Constitution explicitly permits them to be commanded.

    You can not like the states being separate sovereigns, or enumerated powers, but they're both basic to the construction of the Constitution anyway.

    Inspection *ought* to depend on whether the state legislature authorized the purchase of the land, with the feds being ordinary land owners under state law except where the purchase is authorized, in which case the land ceases to legally be part of the state, much as the D of C did.

    But that isn't the way the courts treat post offices, now, is it? The federal courts are, of course, partial to the federal government, and have largely ignored the authorized by state legislatures language.

    And the third law, given the implications if it is upheld, is barely short of a declaration of war.

  • Ken Shultz||

    "'Fair weather federalism' is a long-standing problem on both sides of the political spectrum. It is unlikely to disappear anytime soon."

    From a layperson's perspective, the apparent contradiction that sticks out to my eye is the courts' basis for shooting down Prop 187.

    From the ruling:

    "California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits."

    https://migration.ucdavis.edu/ mn/more.php?id=1391_0_2_0

    On the one hand, Prop 187 was invalidated on the basis that the state of California can't set its own immigration policy--not even by way of the voters amending the state constitution--but, on the other hand, the state of California's policies on immigration preempt federal policy, too?

  • ReaderY||

    Reno v. Condon may be the feds' best argument for requesting information on e.g. release dates of prisoners. But I think it's distinguishable. In Condon, federal law regulated states' sale of driver license databases on the commercial market. SCOTUS held this made the databases commercial products. When states sell commercial products in markets, they are acting as commercial actors and subject themselves to federal commerce regulation.

    Here California isn't acting as a commercial actor, so Reno v. Condon's exception to Printz doesn't appear to apply. It is not selling anything to anyone. The feds are seeking to obtain the state's information, not to regulate its sale to commercial third parties.

    And when a state owns and controls sensitive data in its capacity as a sovereign, it can probably prevent its employees from disclosing that data, even on their own time. It controls the data, not just the employees.

    The complaint claims California discriminates against the feds by prohibiting disclosure to immigration authorities but not others. If this is a valid claim, California might be able to rectify it by limiting disclosure to the prisoner, designees, and warrants. In a prisoner transfer case there would be a judicial order.

  • swood1000||

    Reno v. Condon may be the feds' best argument for requesting information on e.g. release dates of prisoners. But I think it's distinguishable.

    There were two questions in Reno v Condon: (a) does Congress lack legislative authority over the subject matter, and (b) do the federal statutes violate the principles of federalism contained in the Tenth Amendment?

    The first question was answered no because of the authority of Congress to regulate interstate commerce. The second question relates to Printz and was also answered no.

    Isn't the legislative authority of Congress in this area supplied by its authority over immigration? Why do they need interstate commerce?

  • Brett Bellmore||

    Because Congress no longer bothers analyzing whether they have authority over an area. They just pull out the "interstate commerce" stamp.

  • swood1000||

    Furthermore, if the federal government's the authority over interstate commerce allowed it to prohibit Roscoe Filburn from growing wheat to feed animals on his own farm, it's hard to imagine that its authority wouldn't encompass the activities of illegal immigrants.

  • ReaderY||

    The answer to the two questions in Reno vs. Condon was related. The reason Printz didn't apply was the same reason Congress was regulating it. South Carolina was selling its drivers license database to commercial data buyers on the open market. The Supreme Court held that when a state sells data as a commercial product, it is acting as a commercial actor, not a soveriegn, and this means both that Congress has jurisdiction to regulate it as interstate commerce, and Printz doesn't apply. The exemption from Printz that Reno v. Condon creates is an exemption for commercial actors, not for data as such.

    The situation here is completely different from the one in Reno v. Condon. Nobody is selling anything. The data involved isn't being used commercially. California is not acting as a commercial actor. So neither prong of Reno v. Condon is applies to the situation. The federal government doesn't have interstate commerce jurisdictikn, and there is no commercial actor exception to Printz.

  • swood1000||

    The reason Printz didn't apply was the same reason Congress was regulating it. South Carolina was selling its drivers license database to commercial data buyers on the open market.

    That's not why Printz didn't apply. The selling of the database went to the question of interstate commerce, not to commandeering. For commandeering they look to whether the federal law seeks to require state officials to assist in the enforcement of federal statutes.

    Like the statute at issue in Baker, the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.
  • ReaderY||

    The injunction brief's argument that California has to comply with federal administrative orders seemed weak. It was basically that the statutory scheme assumes state compliance and if states don't cooperate, its purposes will be frustrated. But that seems pretty much the same argument as the one rejected in Printz.

  • Michael Cook||

    Could California theoretically allow aliens to vote for state offices, such as governor and attorney general, but not federal offices? This might make for confusion on election day but then, many outsiders are expecting that California will not be a paragon of due diligence when it comes to federal Real ID requirements for voters anyhow.

    Which will bring into question: if control of the US House of Reps this year comes down to voter registration rolls that are full of people whose existence as residents and/or legal citizens is a wisp of smoke, then the whole POTUS impeachment issue may hinge on that as well.

    Big stakes means a big fight. Gov. Moonbeam's alligator mouth may get him in a conflict his hummingbird behind can't handle.

  • Eidde||

    Some states used to let certain aliens vote...now I'm not aware of a state which does this.

    This isn't always highlighted in the "America keeps letting more and more classes of people vote" narrative.

    If a state shows an inclination to let non-US citizens vote, it may be time for a federal constitutional amendment to stop the practice.

  • MatthewSlyfield||

    States can constitutionally allow aliens to vote in elections for state or local offices, but as far as I know, they can not do so for elections for federal office (US House, Senate or President).

    Most states just don't, because for administrative efficiency reasons, federal, state, and local elections get commingled on a single ballot, making the distinction nearly impossible to administer effectively.

  • Eidde||

    I may have missed something, but

    "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." (Art. I)

    "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures." (17th Amendment

    "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of (Presidential) Electors..." (Art. II)

    Has the meaning of these clauses evolved over time?

  • Eidde||

    Well, I'll be a monkey's uncle:

    "18 U.S. Code § 611 - Voting by aliens

    "(a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless—

    "(1) the election is held partly for some other purpose;

    "(2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and

    "(3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices."

  • Eidde||

    Isn't it amazing...the capacity of the Constitution to grow and change with the times...without the actual words needing to be changed!

  • Michael Cook||

    thanks

  • kramartini||

    The Constitution didn't change, you just didn't look at all of it.

    Article I, Section 4 grants Congress the right to regulate Congressional elections. Thus, 18 U.S. Code § 611 was passed pursuant to an explicit grant of power in the Constitution, at least as far as Congressional elections.

    That said, Congress may have over-stepped its boundaries regarding Presidential elections, since there is no explicit grant of power over such elections. Note that electors to the Electoral College are state officials, not Federal officials, and thus Presidential elections are state elections and not Federal elections.

  • MatthewSlyfield||

    "That said, Congress may have over-stepped its boundaries regarding Presidential elections, since there is no explicit grant of power over such elections."

    You may want to consider the 15th and 26th amendments.

  • kramartini||

    18 U.S. Code § 611 may be unconstitutional if applied in a state that allowed aliens to vote.

    The case law on this statute is thin.

  • kramartini||

    It would appear that Article I, Section 4 does not regulate qualifications to vote, as I stated above...

  • MatthewSlyfield||

    U.S. Constitution - Article 1 Section 4

    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

    It appears to me, that the US congress can if it so chooses, regulate every aspect of congressional elections except for the locations of polling stations.

  • KARIBIXON||

    Somin's bias is obvious, he needs to take a walk over to Dr Walter Williams office for a lesson on the separation of powers. When did the federal government cede authority to the states on immigration issues and laws?

  • heymanj||

    Maybe the Professor should read the results of the overturning of Prop 187. From the wikipedia page:

    ...
    In November 1997, Pfaelzer found the law to be unconstitutional on the basis that it infringed on the federal government's exclusive jurisdiction over matters relating to immigration.[20] Pfaelzer also explained that Proposition 187's effect on the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the Congressional overhaul of the American welfare system, proved that the bill was a "scheme" to regulate immigration:

    "California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits."[21]

    Governor Wilson appealed the ruling, which brought the case to the federal Ninth Circuit Court of Appeals. But in 1999, the newly elected Democratic Governor Gray Davis had the case brought before mediation.[22] His administration withdrew the appeal before the courts in July 1999, effectively killing the law.[23]

  • Arthur I Kirkland||

    Poor little Bull Cow, screaming and crying and REEEEEEEEEEEEEEing because in his ignorant worldview no country should have any border and he believes that we should all be under a one world government. I find it amusing that he tries to pretend that his rhetoric is federalism when it is nothing but globalism.

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