The federal government, led by its stalwart and unappreciated Attorney General, Jefferson Beauregard Sessions III, is suing the State of California over the passage of three statutes designed to reduce cooperation with the federal government in capturing and deporting persons in this country illegally.
The three statutes provide, as summarized by Ian Millhiser of Think Progress:
… “California law enforcement agencies shall not … use agency or departments moneys or personnel to” take certain actions against immigrants, including providing the release dates of undocumented immigrants held for certain state offenses to federal immigration officials, and “providing personal information” about these immigrants.
Of the other two:
The first prohibits employers from giving “voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless the agent “provides a judicial warrant.” The second imposes similar limits on immigration officials seeking to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.”
However, both the latter contain exceptions for actions “required by federal law.”
The defense against the attack on the first provision is “… that argument is tough to square with the Anti-Commandeering Doctrine. Again, just to be clear, the federal government doesn’t have the power to order state officials to cooperate with federal law enforcement.” (Millhiser).
The Anti-Commandeering Doctrine (what a great name) provides that the federal government may not force state employees to carry out federal duties. If immigration is indeed solely the business of the feds (as Sessions argues below) then he can’t force the state to carry out its mission.
As Governor Brown said, “They are free to use their own considerable resources to enforce federal immigration law in California.”
The attack on the second and third statutes is grounded on the doctrine of preemption, which basically means that when the federal government takes over an area of law, it is the supreme law of the land. Leaving aside the delicious idea of a stalwart states’ righter like Sessions arguing the supremacy of federal law, the “required by federal law” exception seems to take care of the preemption argument.
As Millhiser points out,
… the Trump administration faces a serious practical difficulty if it hopes to prevail with this claim: It will need to find five votes on the Supreme Court, and conservative Justice Clarence Thomas — who in a 2009 opinion wrote that he is “increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence” — may not join a majority opinion. Thomas has not always acted on this skepticism, especially in politically charged cases where his vote is necessary to reach a conservative result, but if he is a man of his principles in the California litigation, DOJ will face the daunting challenge of finding enough votes to strike down California’s employment law without being able to rely on Thomas.
The text of the government’s complaint is found in this New York Times article.
This is an epic legal battle. The better minds are on the state’s side, though that doesn’t guarantee success before the high court, where the case will surely end.
Poor Justice Kennedy thought “The national government has significant power to regulate immigration, …the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”