The Volokh Conspiracy

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Volokh Conspiracy

Why did the Supreme Court deny certiorari in the California Sanctuary City Case after 13 Relists?

Justices Thomas and Alito would have granted certiorari. Justices Gorsuch and Kavanaugh, apparently, would not.


Monday's order list provides a fascinating opportunity for SCOTUS kremlinology. I previously blogged about the Court's decision to GVR Andrus v. Texas, rather than grant cert. Here, I will blog about a single line in the list:

19-532 UNITED STATES V. CALIFORNIA, ET AL. The petition for a writ of certiorari is denied. Justice Thomas and Justice Alito would grant the petition for a writ of certiorari.

This case did not involve the Trump Administration's efforts to withhold certain funding from sanctuary cities. Rather, in this case, then-AG Sessions went on offense: he challenged the constitutionality of California's sanctuary state laws.

Ilya Shapiro and I wrote about the case in the WSJ. At the time, I predicted that the Supreme Court would rule against the Trump Administration on some, but not all of the claims. And in doing so, the Court could cement certain principles of federalism and the separation of powers–perhaps even with a 9-0 majority. For example, we wrote:

The first challenged statute, styled the California Values Act, limits how state and local officials may cooperate with federal immigration officials. Absent a judicial warrant, law-enforcement agencies in California are forbidden to provide federal authorities with information about an alien's release date. That prevents federal agents from taking custody of suspects at a secure facility, reducing the likelihood that the suspects will be caught and potentially putting federal officers in dangerous situations.

The Supreme Court held in Arizona v. U.S. (2012), which struck down some provisions of that state's strict immigration law, that states can't enact laws that interfere with Congress's plenary power over immigration. And Mr. Sessions argues that the California Values Act defies a 1996 federal law that bars state and local governments from prohibiting the exchange of "information regarding" an individual's immigration status.

The California Values Act, however, doesn't interfere with federal law, because, as the Court recognized in Printz v. U.S. (1997), Congress can't "commandeer" state officials. It is not a proper exercise of federal power to dictate how state law-enforcement agencies manage their resources and prioritize their missions. California's policy of noncooperation no doubt makes enforcement more difficult, but it doesn't constitute obstruction or interference.

Will we get a Supreme Court decision edifying the principles of federalism? Nope. What happened here?

We know that the case was relisted 13 times. John Elwood provided this count:

relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences.

Over the course of four months, I think Justices Thomas and Alito tried to prevail on their colleagues to grant review. They may have even circulated a dissent from denial of certiorari. Alas, nothing. Efforts to persuade the newest members of the Court, Justices Gorsuch and Kavanaugh, failed.

In the end, AG Sessions's signature legal case amounted to a cert-denied.