The Volokh Conspiracy
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Lost in the understandable hubbub over other developments at the Supreme Court is the fact that the Court yesterday declined to take the California "sanctuary state" case, which the Trump administration had asked the justices to hear so they could reverse the lower court decision that went against the federal government. The administration sought to reverse the part of the law restricting information-sharing between California law enforcement agencies and federal immigration enforcers. As a result of the Supreme Court's refusal to take the case, the lower decision will stand, and California can continue to enforce this part of its sanctuary state law.
The Court's rejection of the administration's petition is yet another setback for Trump, one in a long series of defeats for their efforts to try to pressure sanctuary jurisdictions into assisting the federal government's efforts to ramp up deportation of undocumented immigrants. The one major exception was the administration's surprising win in a Second Circuit decision issued in February.
The administration had previously chosen not to appeal most of its sanctuary city setbacks to the Supreme Court. They may have picked the California case because they believed it offered better prospects of success. If so, it did not work out for them.
Justices Clarence Thomas and Samuel Alito indicated that they wished the Court to take the California case. This is notable because they are two of the justices most supportive of federalism limits on national power. Lower courts have ruled in favor of sanctuary jurisdictions in numerous cases based in part on Alito's opinion for the Court in Murphy v. NCAA (2018), which greatly strengthened the case for invalidating 8 USC Section 1373, a federal law the administration relies on heavily in its efforts to coerce sanctuary cities.
It is possible that Thomas and Alito support the administration position in the California case. But it is also possible one or both of them want to take the case in order to issue a definitive ruling striking down Section 1373, which would be an important extension of Murphy. A high-profile Supreme Court decision using federalism principles to curb immigration enforcement would do much to consolidate growing liberal support for judicial enforcement of constitutional limits on federal power. Thomas or Alito may welcome such an outcome, since legal doctrines usually require a measure of bipartisan or cross-ideological support to be firmly established in the long run. Thomas, in particular, has long sought to build support for stronger judicial enforcement of federalism.
This is not the end of the legal battle over sanctuary cities. Litigation on various issues continues in the lower courts. In addition, it is always possible that the Supreme Court will take another sanctuary case in the future.
The California case is just one of a large number of sanctuary cases that have arisen over the last several years. I reviewed and assessed them in this Texas Law Review article. The issues at stake in these cases go far beyond the immigration context, and have broader implications for both federalism and separation of powers.
UPDATE: I put up this post before seeing co-blogger Josh Blackman's post on the same subject. He's right that there must have been disagreement over whether to take the case, and that Alito and Thomas probably tried to persuade the other justices to take it, but didn't succeed. The interesting question is why. Did they want to take it to reverse the lower court, or to issue a strong decision affirming it and thereby solidifying broader support for federalism? It may be a long time before we know the answer, if we ever do.
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