Sanctuary Cities

Trump Administration Seeks Supreme Court Review of California "Sanctuary State" Case

California has largely prevailed in the lower courts, and the administration's petition focuses on the part of the law with the strongest backing from Supreme Court federalism precedent. It's a case the administration deserves to lose.


Flag of California.

In April, the US Court of Appeals for the Ninth Circuit ruled against the Trump administration on most of the issues involved in its lawsuit challenging California's "sanctuary state" law, which restricts state and private cooperation with federal efforts to deport undocumented immigrants. The ruling was one of a long series of  defeats in court for the administration's efforts to crack down on sanctuary jurisdictions and force them to help the federal government against their will. Recently, the Trump administration asked the Supreme Court to take the case and reverse key parts of the Ninth Circuit ruling.

For reasons I summarized here and here, the California case raises more difficult issues than the other sanctuary cases do, though I still believe California ultimately deserves to prevail on all the major issues at stake. But the administration's cert petition focuses on Senate Bill 54, the least vulnerable of California's three "sanctuary state" laws. That law restricts state and local officials from sharing information about immigrants within the state, with federal  immigration-enforcement agencies.

The constitutionality of SB 54 may have been a closer issue back when the administration first filed its lawsuit against California in March 2018. But California's position was greatly strengthened by the Supreme Court's May 2018 ruling in Murphy v. NCAA.

Longstanding Supreme Court Tenth Amendment precedents forbid federal "commandeering" of state and local government officials by compelling them to help enforce federal law. But the Trump administration argues that SB 54 is preempted by  8 U.S.C. Section 1373, a controversial federal law mandating that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." Before Murphy, it was possible to argue that Section 1373 doesn't violate the anti-commandeering rule, because it does not directly order states to cooperate with the federal government, but "merely" bars them from ordering their employees not to cooperate. As I see it, that distinction was always ultimately specious (see here and here). But the issue was not a simple one, and lower courts were divided on the subject.  Murphy, however, decisively undercut the standard rationale for Section 1373. I explained why in an article published soon after the Supreme Court issued its decision:

Murphy struck down a provision of the federal Professional and Amateur Sports Protection Act (PASPA), which mandates that states may not "sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting. A coalition of sports leagues, including the National Collegiate Athletic Association, the National Basketball Association, the National Football League, and Major League Baseball, filed a lawsuit challenging two New Jersey state laws. The sports leagues argued New Jersey's 2012 and 2014 laws, which partially repealed a prior prohibition on sports gambling within the state, qualified as "authorization" of sports betting and thus violated PASPA….

Like PASPA, Section 1373 is an attempt to circumvent the anti-commandeering rule's strictures against federal mandates coercing states into helping to enforce federal law or enact a state law. Instead of directly ordering states to ban sports gambling, PASPA forbids states from repealing a prohibition of it in ways that "authorize" the activity under state law. But the Supreme Court saw through this subterfuge and struck down PASPA, because it violated the anti-commandeering rule by putting state legislatures "under the direct control of Congress" and issuing "direct orders to state legislatures."

Section 1373 suffers from much the same flaw. Instead of directly ordering states and localities to divulge information to federal officials, it "merely" bars them from issuing orders to their subordinates forbidding such disclosure. But the practical effect  is that states must  comply with federal dictates.

Like PASPA, Section 1373 is an "order" to state and local officials; it undermines states' control over their governmental machinery and partially transfers it to the federal government. In this case, federal law prevents states and localities from directing their law enforcement officials to pursue state and local priorities rather than assist federal immigration enforcers. As legal scholar Garrett Epps puts it, "the federal government can't order the states to dance to its tune; according to Murphy, it can't tell the states they may not decide not to dance to the federal tune either. No double-negative tricks now!" Murphy undercuts Section 1373 in much the same way as it doomed PASPA.

Since Murphy came down, multiple lower courts have uniformly either ruled that Section 1373 is unconstitutional, or interpreted it very narrowly to avoid causing constitutional problems by interfering with state autonomy, as the lower court rulings in the California case did.

The administration claims that the anti-commandeering rule does not apply to Section 1373 because it only pressures states to share information. But there is no information-sharing exception to the Tenth Amendment, and creating one would set a dangerous precedent.

The administration also argues that SB 54 is preempted by other federal immigration laws, and that it violates the doctrine of "intergovernmental immunity," which bars state laws that "regulate the United States directly or discriminate against the Federal Government or those with whom it deals." But if any other federal law bars SB 54, it too would violate the anti-commandeering principle, in much the same way as Section 1373 does. And intergovernmental immunity only applies in cases of discrimination, where state law treats the federal government and its agents worse than other similarly situated  parties. SB 54 and other sanctuary laws do not discriminate against the federal government for the simple reason that there is no private-sector analogue to federal immigration enforcement:

The concept of discrimination implies treating similarly situated entities differently. For example, a state government discriminates against entities that deal with the federal government if it imposes special restrictions on firms that rent cars to federal agencies that don't apply to those that rent the same kinds of vehicles to private parties. But there is no true private counterpart to people who assist federal immigration raids, because no private entity has the legal right to deport people, forcibly separate families, and confine people in cages. These are the kinds of things that occur when federal officials apprehend suspected undocumented immigrants…

If - as the administration argues - the doctrine of intergovernmental immunity prevents states from refusing to cooperate with federal immigration-enforcement officials because they still sometimes cooperate with federal officials on other - very different - issues, and with officials from other states, that would undermine the entire anti-commandeering principle. States would be unable to withhold assistance from the federal government on any law-enforcement issue so long as they cooperated with them (or with other states) on anything else.

While some important constitutional issues split judges along ideological lines, the sanctuary jurisdiction cases - so far - have not been among them. So far, the administration has lost nearly all of these cases, sustaining defeats at the hands of both Republican and Democratic-appointed judges. The one noteworthy exception was a case with very unusual facts. Despite the liberal reputation of the Ninth Circuit, both Judge Milan Smith, author of the Ninth Circuit ruling, and the author of the district court opinion it largely affirmed, are conservative GOP appointees. These and other conservative judges ruled against the administration in sanctuary cases because doing so was required by federalism precedents long championed by conservative jurists, including Supreme Court justices such as Antonin Scalia and Clarence Thomas. Ironically, those precedents are now being used by "blue" jurisdictions against a GOP administration, despite the fact that many liberals viewed them with suspicion when the cases in question were first decided. The situation is partly a case of opportunistic "fair weather federalism," but may also reflect a genuine shift in left-of-center attitudes towards constitutional limits on federal power.

Hopefully, the Supreme Court will reinforce this growing judicial consensus by either rejecting the administration's petition, or taking the case and upholding the Ninth Circuit. If the administration manages to prevail, it would set a dangerous precedent that goes far beyond immigration policy, creating a road map for federal coercion of states and local governments that can be used on a wide range of other issues. Conservatives who may cheer Trump's efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or environmental enforcement. Particularly in our highly polarized era, Americans with a wide range of ideological commitments have good reason to support rigorous enforcement of constitutional federalism.

NOTE: For those interested, I have discussed the issues at stake in the "sanctuary state" case and other Trump-era sanctuary jurisdiction litigation in much  greater detail in my recent Texas Law Review article on this subject.

NEXT: Today in Supreme Court History: October 29, 1942

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  1. Conservatives who may cheer Trump's efforts to coerce sanctuary cities may not be so happy when future Democratic presidents use similar tactics on issues such as gun control, education, or environmental enforcement.Wait, they don't do that already?

    1. Pretty much...we're engaging in stupidity like chasing down specific County Clerks for marriage certificates without a care and I barely see anyone else outside the occasional rightwing blogger even remember that federalism exists when debating stuff like Common Core, AWB etc. Somin certainly doesn't bring this angle up nearly as much for those.

      1. What does federalism have to do with the Average White Band?

      2. Ilya Somin is a one-note harpy, obsessed with open borders. I don't think he would necessarily apply his federalist principles inconsistently, but he may enable and excuse everyone else in doing so.

        1. Prof. Somin is a one-note harpy.

          You're a two-note harpy (backwardness and bigotry).

          Should we assume you claim to win the competition?

          1. Interesting that you consider those two things - is bigotry not backward, then?

          2. I'll say one thing for you, they apparently haven't invented a straitjacket that can hold you for long.

        2. It's reaching the point where he's like Shika, you can tell who's writing the screed before even reading it, just from the title.

          1. I think it would be more productive for y'all to engage the arguments rather than complaining about how Somin's positions no longer surprise you. Another thing, why would you (or M L of all people) complain about someone else's ideological purity?

            1. Here's my engagement: California passed laws which didn't merely prohibit government employees from assisting ICE while on the clock. THAT they were unambiguously permitted to do.

              They prohibited them from assisting ICE on their own time. A difficult case on the margins. Arguably, the employees only had information to share with ICE because of their employment, but it still is regulating what they do on their own time.

              They didn't limit the reach of those laws to their own employees: They prohibited private employers from voluntarily cooperating with ICE. THAT pretty unambiguously crosses a line.

              They weren't content to do that, they by law affirmatively obligated private entities to warn their employees if ICE expressed interest in them. That didn't just cross the line, it jumped up and down on it while laughing maniacally.

              This goes far, far beyond non-commandeering.

              1. Brett,
                The district court and the Ninth Circuit both agreed that AB 450 was likely preempted by federal law. That was the law that prohibited private employers from voluntarily cooperating with ICE. The only part of AB 450 that was upheld was the notice requirement if the employer received an I-9 inspection notice. As the trial court recognized, I-9 inspections are about employer compliance with immigrant employment, not employee compliance.

                The notice-requirement also does not interfere with an employer who truly wants to cooperate. ICE has to give three business days notice for inspection. AB 450 requires the employer to post a notice within 72 hours of receiving the notice. In other words, ICE and the employer can coordinate so that the records inspection is occurring at the same time the notice is posted.

                1. Which still amounts to notice to flee before the inspection reveals that you're an illegal alien.

                  In other contexts, such notice is illegal, not mandated, precisely to avoid warning criminal employees the inspection might uncover.

                  1. In other contexts, such notice is illegal, not mandated, precisely to avoid warning criminal employees the inspection might uncover.

                    Any examples?

                2. "The notice-requirement also does not interfere with an employer who truly wants to cooperate. ICE has to give three business days notice for inspection. AB 450 requires the employer to post a notice within 72 hours of receiving the notice. In other words, ICE and the employer can coordinate so that the records inspection is occurring at the same time the notice is posted."

                  Why should the employer be required by law to alert any criminals of any forthcoming enforcement?

              2. The first bit re: "prohibited them from assisting ICE on their own time" is not germane to the appeal.

                The second bit re: "affirmatively obligated private entities to warn their employees if ICE expressed interest in them" is simply an extension of the protections that California state employers receive of IRCA investigations to their employees. If it's your position that federal immigration law prohibits state employers from communicating with their employees about federal investigations of California state employers that walks you into anti-commandeering. Of course there is no federal law prohibiting state employers from telling their employees (or newspapers, or the public) that the employer is subject to an investigation. And it doesn't frustrate federal enforcement, since federal rules (8 CFR 274a.2(b)(2)(ii)) already entitles the state employer to notice of an IRCA investigation. IRCA investigations impose penalties on employers (not the employees). An IRCA investigation is ICE expressing an interest in the employer.

                1. "If it’s your position that federal immigration law prohibits state employers". No, that part is about PRIVATE employers. CA state law requires private employers to notify employees of ICE investigations. Federal law prohibits such notice. Whether the state law is valid or not and/or can immunize CA private employers from the federal prohibition on such notice has nothing to do with commandeering.

                  1. Why would it matter if it is private employers, too? IRCA is focused on employers. They're the ones subject to penalties. Which "Federal law prohibits such notice"?

                    1. "Why would it matter if it is private employers, too?"
                      As I understanding, the notice provision in the CA law is private employers only.

                      "Which “Federal law prohibits such notice”?"

                      Not sure, but that seems to be what the administration is claiming on this point.

                      Again, I don't know which side has the better end of the legal argument on the notice provision, but either way, "commandeering " has squat to do with it.

                    2. @Matthew,

                      Let's get clearer about what is happening here.

                      AB 450 has two challenged (at least at the district and 9th Circuit levels) provisions. First, it restricts employers (generally) from voluntarily cooperating with federal authorities and imposing penalties on them for doing so. (This provision's enforcement has been enjoined, and I don't think California appealed.) Second, AB 450 requires employers to notify their employees of any inspections of federal work-authorization forms, and the results of the inspections under certain circumstances. (The federal government is already required to provide the employer with this notice.)

                      SB 54 is different. First, it prohibits some California law enforcement officials from providing certain information (release dates, name, SSN, for example) to the feds about people in California's custody. Second, it prohibits California law enforcement from transferring people in their custody to the feds absent a judicial warrant or probable cause determination. Notice that the government's appeal only challenges those portions of the district court/9th Circuit applicable to SB 54. The private employer/employee notice provisions (AB 450) are not referenced in the "Question Presented".

                      The Federal law that the US argues "prohibits such notice" is 8 USC 1373, but keep in mind that "such notice" has nothing to do with the private employer/employee notice. It relates to SB 54. 8 USC 1373 applies to "Federal, State, or local government entity or official[s]" not private employers. That argument has nothing to do with AB 450's employer/employee notice for private entities. Again, at least so far as I can tell, the US is not challenging, at the Supreme Court, the lower courts' affirmation of the employer/employee notice of AB 450.

            2. I agree, and, having briefly reviewed the petition for cert., it seems that Somin has grossly underrated the Gov'ts appeal. Murphy is not nearly as compelling as claimed, as noted in the petition, what is the federal law that orders Ca to adopt or implement a regulatory program? None identified by the lower courts. The petition also makes a strong preemption argument: "The challenged provisions of SB 54 are.. .preempted because they regulate aliens’ interaction with the state criminal-justice system in a way that conflicts with the federal scheme—and indeed facilitates evasion of federal enforcement."

              1. "...and indeed facilitates evasion of federal enforcement."

                A state law legalizing professional gambling would also have interfered with federal enforcement of a ban on gambling. As would legalization of drugs that were illegal under a federal scheme.

                1. "A state law legalizing professional gambling would also have interfered with federal enforcement of a ban on gambling."

                  Not really. The feds are still free to come in a enforce federal law.

                  1. The feds are still free to enforce IRCA. And other immigration laws, too.

                2. I don't think you appreciate the difference between commandeering and preemption. Commandeering occurs when a federal law attempts to regulate States. The gov't has not compelled CA to adopt or implement or to refrain from adopting or implementing anything. It is CA that has adopted a system affecting aliens that conflicts with the Congressional scheme. States have no authority over the presence of aliens. That authority rests exclusively with Congress.

                  1. MKE....Wow! Great comment. You boiled it down to the essence of the argument in one paragraph. Thank you!.

                  2. "The gov’t has not compelled CA ... to refrain from adopting or implementing anything."

                    That's strange, because the United States, in its petition, argues that 8 USC 1373 prohibits California from "adopting or implementing" SB 54. (They have to say this to make their preemption argument; without the preemption argument, commandeering wouldn't even come up.) That is, 8 USC 1373 is (per the district court) "a Congressional mandate prohibiting states from restricting their law enforcement agencies' involvement in immigration enforcement activities".

                    The US's argument is not the one you're trying to make. They are saying that SB 54 interferes with the fed's enforcement of its own immigration laws. Fair point. This is not substantively different than their broader preemption arguments: they are arguing that SB 54 shields "from federal law enforcement individuals who have violated federal statutes". Everyone agrees that SB 54 will make the fed's job harder. (Just like Colorado's decision not to imprison people for selling weed will make it harder for the FBI to locate drug offenders by sifting through Colorado's detention records.)

                    Question: Do you or don't you think the feds can pass laws prohibiting the states from withholding information from the feds? That's fundamentally what is at issue. The leap you (and the US) is making, is that Congress can bypass the 10A by preemption. But that puts the cart before the horse. If Congress cannot enforce 8 USC 1373 in the first place, there's nothing left to talk about re: preemption.

                    Anyway, you don't even need to get to anti-commandeering because there's a pretty good argument that SB 54 does not directly conflict with 8 USC 1373 anyway. It only prohibits state's from restricting the transfer of "information regarding the citizenship or immigration status of any individual.

                    1. I don't quite understand your argument. How was it incorrect to state that the gov’t has not compelled CA to refrain from adopting or implementing anything? If CA's law is preempted (which I believe it is) because its purpose and effect is to obstruct federal law, then it is invalid and unenforceable. That's because of the Supremacy Clause. It is not "commandeering." Again, no federal law orders CA to adopt a regulatory program. The federal government is not trying to compel CA to enforce immigration law. Rather, as noted above, CA is attempting to “regulate aliens’ interaction with the state criminal-justice system in a way that conflicts with the federal scheme—and indeed facilitates evasion of federal enforcement.” It is a preemption issue because the CA law confers rights/imposes restrictions that conflict with federal law.

            3. You're saying I'm not an ideologue? I'll take that as a compliment.

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      4. Similarly I hope the left doesn't forget the joys of anti-commandeering when they run the fcc which tries to tell states they may not forbid cities from passing laws to create a municiple broadband.

    2. Democrats already did it against Arizona's SB 1070 and with DACA. Ilya is high again.

  2. You could have just posted the title "Trump vs California on the topic of Sanctuary Cities" and then we could have guessed everything you were going to say without you wasting the time writing this all out and us reading it.

  3. Federalism won’t matter for pot once one party locks in a permanent electoral majority due to mass immigration and proceeds to appoint justices who reverse course and adopt pro-commandeering jurisprudence

    On that note, it seems to be a favorite pastime of lefty legal commentators to call out conservative jurists for perceived hypocrisy (millhiser In Vox today). Why doesn’t this cut both ways? Given her views on Federalism, shouldn’t Ginsburg side with the administration?

    1. She might. She dissented in Murphy.

    2. I think there's a fairly good chance she would do just that, depending on the facts of the case.

  4. There's a typo in your sub-headline, Prof. Somin, which I point out only because I know you welcome such corrections: "on the part of the s law with" has a random letter s which needs deletion.

    1. It was an illegal letter that snuck in.

  5. CA libs hate this country and love open borders so much, they go to great lengths to make sure that even violent felons aren't deported.

    Anyway, I tend to agree that Sec. 1373 as such should be considered unconstitutional under Murphy. However, it seems clear that the federal government could condition federal funds on compliance with the requirements of Sec 1373.

    1. ...And the federal government has arguably done just that, in the case of certain federal funds.

    2. If you take the Devil's money, you must dance to the Devil's tune.

    3. Mass mestizo immigration is not the end, it’s the means.

    4. CA libs hate this country and love open borders so much,

      Immigrants built this country. And countries that vastly restrict immigration cannot grow economically.

      they go to great lengths to make sure that even violent felons aren’t deported.

      Not a single word of this is true. But so called "patriots" like yourself have to resort to lying as they don't have facts on their side.

      1. regexp, you are full of shit. One example of 'they going to great lengths to make sure that even violent felons aren't deported' occurred in MA when judge Richmond helped an illegal immigrant with a felony warrant escape.

        This happens all the time.

        1. 'Here's an anecdote'
          'This happens all the time.'

          Your evidence makes it look more like you feel like it happens all the time than anything else.

          1. But you have no problem with regexp's comment. I see.

            You could fill this blog with instances of supporting the statement "they go to great lengths to make sure that even violent felons aren’t deported," to which regexp replied "not a word of this is true."

            The 'anecdote' I shared is just that, but evidence that it does, indeed happen. One need only follow the news from New York City, San Francisco, Boston, etc. Go take a look.

            1. The plural of anecdote isn't data. It's confirmation bias, is what it is.

              I heard about the anecdote you posted on this blog. It made it here because it was extraordinary.

              Your confirmation bias has you in a paranoid world wherein there are countless judicial zealots against you. Until you bring more than 'hey check the news, I see it all the time' I'm not going to be impressed with more than your confirmation bias.

      2. iMmIgRaNtS bUiLt ThIs cOuNtRy!!

        1. Your nativism is taking over your brain.

          1. My brain is fine. Yours however, as usual, is incapable of substantive contribution, and only offers unthinking pre-programmed slander.

            1. Ironic, considering your comment I was responding to.

              All you post these days is contentless anti-immigration screeds (often in response to actual stats and economics brought be NToJ or DMN) or badly sourced conspiratorial speculation defending the increasingly indefensible President who abets your obsession.

              I don't know where this ends with you, but that kind of hate burns you up.

              1. I guess today is opposite day? In reality, I post substantive content and sources while others don't.

                1. I noticed below after I posted. And kudos - it's good to have a bit of your old self back. It's definitely made the thread into a better place.

      3. IMMIGRANTS are those who used to live somewhere else, but decided to move here, went through all the legal requirements and were granted permission to move here, live, work, etc. THOSE are the folks who built this country, and I've got a pile of them in my background. I actually went through the process to emigrate from the US to another nation, some years back, and was accepted. One of the things they made VERY clear to me: if, wihtin the first two years of your residency in our country you end up using public money to survive, we WILL be kind enough to purchase an airplane ticket back to the city where you lived when you applied for resident status.

        I heard enoughaccounts of them actually DOING that I am certain they would have. But I made a good living there working honest work. Just decided to come back here. Never told them I left, stil have all my legal papers, could easily return and filter back into the woodwork and I'd be totally legal.

        The open borders crowd believe there should be no limit, requirement, registration, inspetion, vetting, quaiflying, background check, credit check, or any thing else. want to live in the US? Just waltz on across any imaginary line anywhere or bob on in corked up in a BIG wine bottle. And it is precisely THOSE SORTS who are the ones we NEED to carefully inspect,, investigate, qualify.. etc. THESE are the ones murdering, dealing illilcit rugs, raping, driving drunk and killing people, using fake registrationi/number plates on their cars to as not to be traceable..... and yet for so many, smoehow livin goff the welfare system and other freebies.

        You also forget about the multiple times deported multiple felony criminal who was let out of jail in San Francisco, was in possession of a handgun (not lawful for a convicted felon, he had multiple such charges against him) (felony one) which had been stolen (it would seem most certainly by HIM) fro a parked cop car (felony number two) was in possessionof it whilst loaded and in public (felony number three) wihtout a Mother MayI Card to do so) felony number four) negligently discharged it in that public place (felony number five) and the round hit ahd killed an innocent (making it manslaughter by negligence, felony number six.
        Last I knew he was STILL in California, who had refused to turn him over to fed agencies.

        What about that dirtbag murdered a lady cop somewhere in the Central Velley, can't recall the place? Learn about HIS "status" and how it was he is out in public without a qualified custodian.

      4. Immigrants did not build America, and that trope is really getting old.

        1. Immigrants by definition build America even if we're talking about pre-Columbian America. Everyone on the Continent emigrated from somewhere else.

          1. By definition, the British colonists were not immigrants.

            1. What's your logic behind that?

              1. An immigrant is someone who enters an existing society. Not one who conquers and creates his own.

                1. But I thought the immigrants were conquering invaders!

        2. Man, just laying the whole 'immigrant as euphemism for nonwhite' thing bare for the world to see, are ya?

          1. Nope. But the colonists were not immigrants.

            1. Not making your case any better.

  6. So, I'd argue California's stance here goes further than simply trying to avoid its employees from being used to enforce federal law. Instead, California is using its own laws to attempt to undermine federal law.

    That is more in line with Nullification, as practiced by South Carolina in the early 1830's.

    Some of the hallmarks of nullification were.

    1. Importers could pay the tariff if they wanted. Or not.
    (IE, people can follow immigration law if they want. Or not)
    2. Those importers can choose to obtain a tariff bond instead of the tariff.
    3. But if they chose not to pay the bond, when due, and the customs official seized the cargo, the the customs official could be sued in state civil court
    (IE, just like local officials who help ICE can now be sued in state civil court).

    It's point 3 which really puts it into direct contradiction with federal law. Whereby someone acting in accordance with federal law is somehow breaking state law. And this I expect will be overturned.

    1. Yes, it's pretty obvious that California has taken several steps beyond just not assisting the Federal government. They're actively ordering their employees not to contact ICE even on their own time, and worse: They're ordering private citizens to take affirmative actions to frustrate immigration enforcement, such as warning employees if ICE becomes interested in their workplace.

      1. And really, that's what makes it problematic. The clear undermining of federal law, in what's essentially a nullification issue. The encouragement of civil lawsuits which prevent lawful enforcement of federal laws.

        Let's expand this. Perhaps California can pass a law that makes it illegal for any California employee or agency to pass on any tax information to any federal agency. Completely legitimate, right? If the IRS can't get the tax information, well, that's the IRS's problem.

        Maybe next Texas can make it illegal for any health insurance provider that receives state funds to comply with any Obamacare regulations. And the provider can be sued if they do. Completely legitimate use of state power right?

        But luckily Trump may have an option similar to the one Andrew Jackson had. The use of the federal forces, en mass, to enforce the law in a recalcitrant state.

    2. I agree that the state doesn’t have to cooperate, but it cannot positively obstruct. And where exactly the boundary between the two is will be a matter for continued litigation.

      1. So, one of the areas I expect to be struck down is the law barring cooperation by local government agencies. If the State chooses not to cooperate, in its official executive capability, that is its own choice.

        But by extending its power to LOCAL governments, upon which it does not exert executive authority, and demanding they do not cooperate, there it goes too far in undermining federal law. The local governments could choose on their own, or not, to assist. But the passing of a law demanding they don't (with penalties if they choose to) goes too far.

        1. No, I think California is in the clear there: Local governments are, barring some state constitutional provision, mere creatures of the state, with no independent power or rights.

          1. I would disagree. Local governments are more analogous to private citizens of the state. They listen to the laws of the state in a similar manner. Local governments fund themselves, make their own laws, and do not directly answer to the state. The California legislature does not "appoint" a mayor of San Francisco, that mayor is elected by the people of SF.

            The state government can command its own employees not to cooperate. It can't command local employees not to cooperate anymore than it can tell private citizens or private companies not to cooperate. Not without interfering with federal law.

            1. Im pretty sure that for purposes of the constitution and article III courts local govts are mere creatures of the state, barring state constitutional or common law to contrary

            2. That’s how most people think of it, but the Constitution only recognizes three entities: the People, the States, and the Federal Government. As far as the constitution is concerned a city, county, town, parish, what-have-you is purely a creature of the State that created it and is under its exclusive and omnipotent power.

              Now each State may have further constrained itself in its own constitution to recognize subordinate but not subsidiary entities, but that’s a matter of state law.

              Assuming the CA constitution doesn’t say otherwise, the CA legislature could disband San Francisco city and appoint whoever they like. In many states there are specific clauses protecting what’s generally referred to as “home rule,” but again, that’s a matter of state law - as far as the feds are concerned it’s a single entity, and how they choose to organize lower level functions is up to them.

              1. It’s complicated. A city is considered part of the state for some purposes and not part of the state for other purposes. One example where they are not state government is the 11th Amendment. A city doesn’t have sovereign immunity from being sued in federal court. But for purposes of other parts of the constitution, they are state government. For example, local government action is state action for purposes of the 14th Amendment.

                In general, the default is that cities are considered state government for constitutional purposes, and the 11th amendment situation represents a special exception.

                1. This isn't England, where London has been its own thing longer than the government itself.

                  Let me ask a similar question. Should the FCC be able to ban state governments from forbidding cities from installing municiple wifi?

                  Or does it now sound like a grotesque power grab by the federal government attempting to define what a city is, and make it a creation of tbe federal government?

              2. Yeah, I hate Dylan's Rule and the whole theory that local governments are creatures of state law because I tend to view things as from the bottom up flowing from the people, but the law is clearly against me with this theory.

    1. Does that mean they receive Federal protection under RFRA?

      1. Your joke is trying to step on my joke.

        1. Sorry, I was at work so I didn't actually click on your link. My bad.

  7. I think in general that the State of California will prevail on most of these issues. But there are sets of fact where it won’t.

    For example, I doubt that the State of California can prohibit its officials from cooperating with the federal government on their own time. Murphy involves only official acts, as any act of a state’s legislature is unambiguously an official state act. But it’s not clear that a state can prohibit its officials from private cooperative acts.

    So while I suspect California will continue to prevail on most of these cases, there will be some where it won’t.

  8. Another, more modern example is the "massive resistance" strategy embraced by Robert Byrd to undermine federal law during the 1950s

    For example, states have the right to fund what they want, right? So, Byrd organized state funding to avoid integrated schools. Completely fine, right? I mean federal law can't "force" the states to fund certain schools, can it?
    Perhaps he could've just ordered the school teachers not to comply with federal agencies and not teach at integrated schools. That would be kosher, no?

    Perhaps the best example is Griffin v County School Board of Education, where the Supreme Court ORDERED a local county government use its power of taxation to comply with federal law.

    1. Griffin doesnt seem applicable. Where is the equal protection factor here?

      1. You need to understand what Griffin was, it was the use of what should be legally utilized state powers to undermine federal law.

        Rather than integrate schools, the county simply said "we're not going to fund any schools. There are no public schools in this county".

        And that is a right the county has, if it so chooses right?. The government can't force the state to fund public schools, right?. It could, presumably, force them to equally force schools, and to integrate the schools. But here the county chose a different option. They just choose not to fund the schools.

        Ultimately, however, the government forced the county to commit taxes to fund public schools, so that the county would uphold federal law.

        1. ”Ultimately, however, the government forced the county to commit taxes to fund public schools, so that the county would uphold federal law.“

          Right but wasnt the rationale for the state’s compepled funding that their motive for ceasing funding was discriminatory, implicating equal protection

        2. Courts have never applied the same restrictions of Printz to themselves. They've always considered themselves to have the power to coerce state officials. Moreover, the anti-commandeering principle has definitely never applied to the judicial branch (something Printz itself had to acknowledge) since state Judges are compelled to strike down their own laws if they conflict with Federal law.

          It's part of the reason I've always been skeptical of Printz as a matter of Constitutional law. I get the theory that it relies on the word "proper" in the Necessary and Proper Clause, but it doesn't really seem to flow from McCulloch v. Maryland.

    2. Massive Resistance was Harry F. Byrd Sr.

      And this isn't the same as resisting a 9-0 Supreme Court order, backed up by the executive.

  9. Ilya,
    This article really needs a re-write. It seems to me you jump over a lot of information and then link to past articles which address multiple cases and present an incomplete procedural history.

    Most notably, you don’t have any citations to analysis or links United States v. California, 921 F.3d 865 (9th Cir 2019). You only link to the district court case which was reversed in-part. To make things more confusing, the previous sentence is in regard to City of Los Angeles v. Barr, 929 F.3d 1163 (9th Cir. 2019). The sentence makes it seem like they are the same case. This is even more so since most people would call United States v. California a win for the United States.

    My recommendation is to dump everything that is not United States v. California. That way, you have your 3/8/18 article as the set up, your 7/5/18 article on the trial court decision, a discussion of the Ninth Circuit decision reversing the trial court on AB 103 but affirming on SB 54, and then finally the core point about the petition for cert regarding SB 54 and why the United States is going to lose.

    You’re right the United States loses on this all day. You’re also right that Murphy makes it even harder for the United States to prevail. But your discussion after these points is muddled.

  10. California to be re-named New Venezuela.

    1. Yeah, whatta failed economy.

  11. "It's a case the administration deserves to lose."

    Deserves got nothing to do with it.
    - William Munny

  12. CA has no "right to immigrate" on their side and federal has the enumerated power to determine "citizenry" and rules thereof. (Article I, Section 8 "... To establish an uniform Rule of Naturalization .... " and to "... define and punish ... Offenses against the law of Nations.") there really isn't any debate on who is responsible for national immigration.

    Whether or not CA sanctuary law is in violation to the Supremacy clause could be debated in court but I agree with the author. There is nothing REQUIRING the state of CA to enforce federal law. (thus is why we have US Marshall's & a non-state operated IRS).

    Just remember the Brady Bill - its a perfect example. Obama wanted local police to go confiscate everyone's guns and the Supreme Court ruled the feds do not have the authority to order States to do their job for them. Not to mention the feds have ZERO authority to even take guns let alone being against the Bill of Rights.

    1. The federal government has made helping, concealing, or aiding people illegally present in the US a crime; why would state agencies be exempted from that?

      1. State Officials doing the feds job is more like impersonating a federal officer than aiding & embedding. If the state is concealing information you probably have a point.

  13. It’s fascinating how people like Somin suddenly care about states’ rights when it helps their globalist, authoritarian agenda, but reject states’ rights when it helps free speech, gun rights, etc. Drop the mask, Somin, you aren’t fooling anybody.

    1. You are assuming a great deal about Prof. Somin's thoughts on those other issues.

      1. I am not assuming anything, I have read many of his articles.

        Oh, I’m sure he deludes himself that he is generally pro liberty and that even that he occasionally makes arguments that are pro states rights, but so do many of the people who call themselves “liberals”.

        1. reject states’ rights when it helps free speech, gun rights

          That's flat-out untrue, so far as I've read him over the past decade I've been commenting here.

  14. Maybe a lawyer can comment on this....

    It seems to me that SCOTUS shies away from using the 9th and 10th amendments as grounds to uphold or overturn laws. it because they are very broadly worded?

    Personally, and this pains me to say it, I believe CA prevails on 10th amendment grounds. Can't force a state to enforce a federal law. Conceptually, I think of it like an unfunded mandate.

    That said, I would like to find every illegal alien in this country and deport them.

    1. California would prevail if their attempts at nullifying our immigration laws had stopped at just non-cooperation. But they went way past that, not that Ilya acknowledges it.

    2. The anti-commandeering doctrine at issue here is ostensibly a 10th amendment doctrine. So the courts do "use" the 10th amendment (which is a truism, though not a very well respected one in the view of many originalists).

      "Can’t force a state to enforce a federal law." Correct. However, Section 1373 didn't exactly do that -- it only barred a state from prohibiting law enforcement officials from cooperating with immigration authorities. In no way does the statute require such cooperation. Contra Somin, this seems to me a meaningful distinction.

      However, Sec 1373 does dictate what a state legislature may or may not do. In the 2018 Murphy case, SCOTUS expanded anti-commandeering to say that the fed govt could not prohibit state legislatures from repealing their laws against sports gambling. This seems to go beyond the original concept of "commandeering" state and local executive resources and personnel for federal purposes and enforcement, and instead goes to limits on federal power to dictate state legislation. Arguably, this seems to create some confusion and tension with areas the fed govt has had a free hand to "preempt" state law for many decades. However, it seems fair to question the distinction between requiring a state to do something and prohibiting a state from doing something, at least legislatively, as the court did in Murphy. Time will tell how this may affect the overall depleted state of federalism and state and popular sovereignty.

      On the face of it, the precedent of Murphy would seem present a strong case that Section 1373 is unconstitutional. I'm no expert though, and I offer two further qualifications:

      1. My analysis assumes the validity of Murphy and other SCOTUS precedent, and does not touch whatsoever on the (arguably more important) issue of the original meaning of the Constitution, on which I express no opinion.

      2. Off the top of my head, it seems there is a serious counter-argument in that immigration is a matter of international/foreign policy and national security, and therefore is easily distinguished from regulation of domestic commerce and vice such as sports gambling. Foreign policy and national security are the exact areas of authority that the federal government really is supposed to have power and supreme authority, under the original meaning of the Constitution and SCOTUS precedents alike.

      1. Also, as Brett has noted, SB 54 appears to go beyond the narrow issue of Sec 1373.

      2. Also, none of this analysis applies to the question of what the fed govt can require states to do as a condition of receiving federal funds. The fed govt can require many, many things as a condition on funds that it could not require as a bare directive. There is no question in my mind, nor in anyone's mind I believe who knows what they are talking about, that Congress could include the requirements of Sec 1373 as a condition on funds, under current SCOTUS precedent. There was only some argument whether Congress had in fact done that. Congress could go much further than 1373 as well, and actually require cooperation with immigration authorities as a condition on funds.

        1. M L....Your comment series (immediately above) was very helpful to me in understanding the context of this article. Thank you.

          1. Great! Thank you for the reply.

      3. Re: 2, there is no "matter of international/foreign policy and national security" exclusion to 10A jurisprudence. The law in Murphy was enacted per Congress's commerce clause power (I believe). Congress's power over national security (provide for common "defence") and immigration (naturalization) are in the same Constitutional section as the Commerce Clause.

        1. Well that's not a very good comment. Here's what I get from a bit of googling:

          "It is an elementary truth in American constitutional law that the
          power to conduct foreign affairs rests solely with the federal government.14 Justice Sutherland, a Justice otherwise known for his sensitivity to states’ rights,15 epitomized this basic assumption in United States v. Belmont16 when he stated, “in respect of our foreign relations generally, state lines disappear. As to such purposes the State of New York does not exist.”17 Accordingly, when a federal law expresses the legislature’s intent to exclusively govern a matter related to foreign affairs, courts will always give primacy to the federal government over the states.18 However, when federal law on specific foreign relation matters is unclear or non-existent, it remains unsettled whether state law governing such matters is constitutional.19"

          1. Footnote 14 cites to three cases, US v. Pink, Holmes v. Jennison, and Gibbons v. Ogden. Gibbons is a commerce clause case. Footnote 18 (cited) references Am. Ins. v. Garamendi. Foreign commerce clause case. (The interstate commerce and foreign commerce clauses are in the same provision in the Constitution.) Footnote 19 again references Garamendi. The legal concept the author you're quoting is just dormant federal supremacy, and it has been applied to commerce powers for nearly 200 years.

        2. The exclusive nature of the federal foreign relations power has long been asserted by the Supreme Court. In 1840, for example, the Court declared that “it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.”501 A hundred years later the Court remained emphatic about federal exclusivity. “No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the States; it is vested in the national government exclusively. It need not be so exercised as to conform to state laws or state policies, whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the courts.”502

          1. None of this has anything to do with what we're discussing. Federal supremacy over foreign affairs, naturalization, and interstate commerce is settled. That does not entitle the federal government to force states to implement even its exclusive powers. That's true of naturalization, war powers, whatever.

            I'm not even sure the US can win on the argument you're making, since it never preserved error on that argument.

            1. Yes, the federal government cannot commandeer state governments and force them to enforce federal laws -- even within its most exclusive realm of authority, foreign affairs. But enforcement of laws is an executive function, or rather the very definition of the executive function. Murphy, on the other hand, is expressly a limitation on the power of the federal government to "commandeer" a state's legislative function.

              There is simply no argument to be made that Section 1373 forces states to enforce federal law. It plainly doesn't. What the statute does is limit, or "preempt" if you will, the state's legislative function.

              As I mentioned, Murphy seems to be in tension with federal preemption and supremacy. A post at SCOTUSblog mentions this as part of an argument against anti-commandeering altogether (I don't think I buy that argument). The Murphy Court attempted to address this issue by saying that preemption involves the direct regulation of "private activity." And recall that preemption of state law is found even where federal law does not expressly preempt and is not even conflicting with state law, if a federal regulatory scheme is so "pervasive" as to "occupy the field."

              In Murphy, there was no direct federal regulation of, much less a pervasive scheme applied to, sports gambling. Obviously, that's not true for immigration. And it seems doubtful that this sort of analysis would even apply to matters of foreign policy which are the exclusive authority of the federal government and not the states.

              I will assume you're correct that the US has not preserved their arguments in the case at hand.

  15. Logically, I don't understand how comandeering is even a concept or how it violates 10A. I get that the fed has to work within enumerated powers, but it seems absolutely absurd to suggest that immigration is not a federal matter. Article 1 clearly gives Congress the ability to determine rules for citizenship. Regardless of what the Constitution says, if states can simply choose to skirt immigration laws, then they can effectively create a crisis of citizenship. The problem is that we are a country. Just like it makes no sense for states to issue their own currencies and fight with one another over them, it makes no sense for each state to have its own immigration law. If sanctuaries can stand because of commandeering, which frankly is a red herring, then anti-sanctuaries can stand as well and we'll have interstate conflict.

    1. I think a lot of this is the argument that the administration expanded the reach of the statute in question to cut off appropriated funds. Congress can fix it. It is always funny when the "other side" uses means that the criticize others for using (e.g. use of regulatory action to bend around statutes is bad depending on whose ox is gored).

      I can be wrong, but I don't see anything in violation of federal law when a city or state says that they will not hold someone longer than they otherwise would simply because they are asked. I also don't see anything wrong with states telling the government to enforce your own firearms laws--don't make us do your job.

      1. For me, the difference in asking a state to comply with federal immigration enforcement is that unlike gun laws that don't prevent a state from enforcing its own rules, refusing to comply with federal law forces states into a situation where, in order to enforce their own immigration laws, they must enact border controls at the state level. It would be a similar issue to EU members who restrict free movement despite being part of the EU.

        Also, any state that refuses to honor an ICE detainer should be legally culpable if the escaped illegal immigrant goes on to commit further crimes. Furthermore, any state that crosses the line from refusal to comply with outright tipping off should be treated as an accomplice to said crime and charged as such.

        From a libertarian perspective, it makes zero sense that a state should be able to have sanctuary policies that, regardless of intention, invite and enable illegal aliens who commit crimes. State policies have resulted in thousands of murders and countless other crimes and the notion that a state you don't even preside in should be able to override the wishes of the entire nation and subject you to blatant violations of your liberty is patently absurd.

        1. That doesn't make sense. Just because a state can enforce their own gun laws, they aren't required to have any. Or they could choose to have less enforcement that Federal law provides. In cases where their actively choosing not to help the Federal government as a policy matter, they almost certainly do so because they want the law enforced less. So states can choose to cooperate with Federal enforcement if they wanted it enforced same as they would with gun right arguments.

          Regarding your libertarian perspective, gun policies have resulted in thousands of murders and countless other crimes. Do you think states that refuse to follow Federal gun policies should be held responsible for gun crimes committed under those circumstances or is that different?

          1. Sure it makes sense. If you don't want any AR-15s in California but Oregon wants to permit them, California can control them within their own borders. But in order for California to forbid sanctuary residents entering from Oregon, they can't just remove them once they're there. Or they could, but that would defeat the purpose. Then you run the risk of Oregon refusing to accept them back from California. We need not even explore how unfair it would be for Oregon to create an additional expense for California by having a different immigration policy for all 50 states. California would have a strong motivation to deploy the National Guard to their borders and we aren't a country at that point.

            You're looking at this from a legal perspective and losing the real issue in the minutiae. Any sort of ruling against Trump's perspective enables states to produce their own immigration policy and to subject the rest of the country to its consequences. Think about that for a bit.

            Guns aren't people so your comparison is moot, but if a state has restrictive gun policies that result in loss of life (ex. someone can't defend themselves appropriately due to gun control) then the state should certainly be held responsible considering that person has a Constitutional right that was deprived by the state. A state having lax gun laws that comply with 2A cannot be held liable for whatever happens.

            1. And to clarify further, states already have been subjecting us to the consequences of their immigration policies, which is why we elected Trump to go after sanctuaries in the first place. These people should not be here under any circumstances. By law, they should be removed the moment we are able to ascertain they are here illegally. All you have to do is attract a few hundred thousand illegal immigrants and you've just stolen an electoral vote or two from another state. You'll also get more seats in Congress and steal representation from law abiding US citizens, enabling you to get more people into power with your warped agenda. Sanctuary states had already stolen more than 10 electoral votes and multiple congressional seats by the early 2000s and that number is certainly higher at this point.

              The moment you make your warped sense of justice the number one priority, you end up releasing people back into society. It doesn't matter that illegal immigrants commit crimes at a lower rate than US citizens. They commit crimes that, had our current laws been followed, would never have occurred in the first place. Your primary obligation must be to your fellow citizens and legal residents. If it isn't, then there is no reason to be a citizen or to move here with the goal of obtaining citizenship. Our country serves us, not the other way around. We are not fodder for the political class.

    2. This was the same argument made by Stevens, Souter, Ginsburg, and Breyer in their Printz dissent. I'm pretty sympathetic to the argument. Stevens went further to argue that Federalist No. 27 evidenced the founders' intent that the states act in concert with the feds.

      Anti-commandeering is based on penumbras and emanations. As Justice Scalia noted, the anti-commandeering doctrine is supported by "no constitutional text" and so bringing it to life requires looking to the "historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court."

  16. Good Ol' "Open Borders" Ilya out with another piece trying to tear this country down.

    Sanctuary Cities put citizens in danger. American's are dying because of these horrific acts by liberals just for some cheap and easy votes.

    It's sickening.

    1. these horrific acts by liberals

      Ze DRAMA!

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