The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 dates 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.