US may face tough fight over California’s ‘sanctuary’ laws

Legal scholars said a complaint filed by the Trump administration against California over three of its state immigration laws may face an uphill battle in court.

The U.S. Department of Justice argued that the state laws — SB 54, AB 450 and AB 103 — obstruct federal immigration authorities from doing their job, and that federal powers over immigration preempt the laws, which overstep their bounds. The federal government is seeking a preliminary injunction against the laws.

The complaint, filed late Tuesday in Sacramento, was assigned to U.S. District Judge John A. Mendez, a George W. Bush appointee.

“The California Legislature has enacted a number of laws designed to intentionally obstruct the work of our sworn immigration officers,” U.S. Attorney General Jeff Sessions said during a speech in Sacramento announcing the suit on Wednesday. “California is using every power it has — and some it doesn’t — to frustrate federal law enforcement.”

“So you can be sure I’m going to use every power I have to stop them,” Sessions added. U.S. v. California, 18-AT-00264, (E.D. Cal., filed March 6, 2018).

At a press conference Wednesday, state Attorney General Xavier Becerra reasserted what he saw as the state’s constitutional rights.

“The Tenth Amendment provides California the right to decline to participate in civil immigration enforcement,” Becerra said. “California has exercised its right to define the circumstances where state and local law enforcement may participate in immigration enforcement.”

“We’re not trying to get into their business. They’re trying to get into our business,” he added.

Professor Pratheepan Gulasekaram at Santa Clara University School of Law said the government’s weakest claim was against SB 54, a California law that prohibits the use of state resources to assist in immigration enforcement. “I fully expect California to win on that claim,” Gulasekaram said.

Gulasekaram added that when it came to a preemption case like the one advanced by the federal government, Sessions would have to prove there are particular federal laws or policies that conflict with state or local ones.

“The federal law that the complaint articulates with regards to SB 54 is a provision called 8 U.S.C. 1373, and in my view SB 54 and its provisions regarding communication and investigation by California local law enforcement authorities doesn’t in any way conflict with the federal law,” he said.

Jessica Vaughan, director of policy studies at the Washington, D.C.-based Center for Immigration Studies, disagreed in an emailed statement. “SB54 clearly violates federal law, which says that a state government can’t prohibit local law enforcement officers from communicating with immigration authorities,” she said.

Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University, said the challenge to AB 103 — which among other provisions requires the California attorney general’s office to inspect county, local and private facilities contracted with ICE to house immigration detainees in California — could be a hard sell in court.

“California surely has a sovereign right to inspect its own state government facilities as much as it wants,” Somin said. “These inspections don’t actually prevent the federal government from detaining people,” he added. “The only way it would interfere is if the inspector found some kind of illegal activity. California definitely deserves to prevail here.”

Somin also said that for each challenge brought by the DOJ, the issue was whether the federal government has enacted a law that preempts the particular state laws.

Gulasekaram said the fiercest battle could come over AB 450, a state law that went into effect this year and requires private employers to demand a warrant from ICE officers before allowing them to inspect nonpublic areas of a workplace or employment records, among other provisions.

“The hardest questions for California come with AB 450,” he said, adding that the federal suit could present open and novel questions of law and that California’s interests were more amorphous.

“The other two claims go to the state’s control over its own law enforcement officers, its own facilities and the way in which it conducts investigations and the way in which it utilizes its own resources,” Gulasekaram said.

“When you’re talking about [AB] 450, this is not the state regulating itself, its own resources, its facilities, its personnel,” he said. “It’s states regulating employers, and I think that attenuates the state’s interest a little bit more than in the other context.

He said that while employers clearly had rights to request a warrant before allowing law enforcement to conduct certain activities, it was less clear whether the state could dictate how employers exercise those rights.

Although U.S. District Judge William H. Orrick of San Francisco has handled the previous cases in California surrounding sanctuary jurisdictions, the case was filed in the Eastern District and will be heard by Mendez, who some lawyers described as a good draw for Sessions’ chances in the case.

Sacramento plaintiffs’ attorney Herman A.D. Franck V, who said he has had three cases in front of Mendez, said the Eastern District is one of California’s most conservative and added, “Mendez fits into that.”

“In Sacramento, he [Sessions] picked the right court,” Franck said. “Whatever it is he’s arguing, I expect him to win.”

“You generally get not only the conservative judges but the jurors to back that up,” he added.

Ronald Richards of Ronald Richards & Associates APC in Beverly Hills had a case in front of Mendez that involved a confluence of federal and state law: the federal prosecution of attorney Nathan Hoffman for conspiring to distribute marijuana.

Mendez initially rejected Hoffman’s plea deal of four years as excessive for the charge, Richards said, but then accepted it when prosecutors said they would charge him with a more serious offense. Richards came into the case after the plea.

“I think Judge Mendez is not afraid to rule against the government and do what he thinks is right,” Richards said. “He is an independent judge.”

Richards added: “He recognized marijuana is legal in California. He’s not insensitive to the potential conflict between state and federal law.”

Legal observers also cited a previous challenge to an Arizona state law that was struck down by the U.S. Supreme Court because it allowed state and local law enforcement to enforce federal immigration law as a potential precedent.

“The recent case of Arizona’s law is also relevant, because it established that states can’t have laws that interfere with the federal government’s ability to enforce immigration laws as it sees fit — they are pre-empted — and certainly the new California laws do and are intended to interfere,” said Vaughan, with the Center for Immigration Studies.

Eric H. Holder Jr., the previous U.S. attorney general and now a partner at Covington & Burling LLP who was hired by the state Senate, said the Arizona case was irrelevant.

“Rather than creating a separate state enforcement scheme to regulate immigration as Arizona did, SB 54 constitutes an exercise of state authority in core areas of state sovereignty,” he said.

“SB 54 acknowledges and is consistent with our constitutional scheme, whereas the 1070 law out of Arizona tried to superimpose a structure not imposed by our founding documents.”