Dispute on state’s immigration laws hinge on federal rulings

Whether three disputed California immigration laws survive an initial challenge at oral arguments could hinge on two federal court decisions regarding the rights of states to legalize sports gambling and the power of Washington, D.C. over state affairs, according to experts.

U.S. Department of Justice lawyers will seek a preliminary injunction against the laws Wednesday in Sacramento, alleging they infringe on federal immigration enforcement.

The federal government sued the state over the laws, SB 54, AB 450 and AB 103, in March and asked U.S. District Judge John A. Mendez to issue an injunction against them. The government argued that the laws would cause irreparable harm by stopping the arrests of criminals and hindering federal law enforcement, among other issues. U.S. v. California, 18-CV-00490-JAM-KJN (E.D. Cal., filed March 6 2018).

SB 54 limits state law enforcement cooperation with U.S. Immigration and Customs Enforcement. AB 103 allows the state to inspect immigration lockups and AB 450 requires employers to demand a warrant before allowing ICE into nonpublic areas of a work site.

DOJ lawyers argued in their original motion for preliminary injunction that SB 54 violated federal law by restricting state and local immigration officers from sharing immigration information with federal authorities.

California Department of Justice lawyers cited a recent Supreme Court decision allowing states to permit sports gambling as grounds for why the law should stand. Murphy v. NCAA, 16-476.

"Murphy makes clear that these kinds of efforts to circumvent anti-commandeering probably won't be tolerated," said Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University, referring to a federal law at issue in the case, 8 U.S.C. 1373. It stops state and local governments from getting in the way of immigration information being sent to federal authorities.

A recent case in Philadelphia district court also cited by lawyers for California and which declared 1373 unconstitutional was also likely to be a point of contention on Wednesday, according to Pratheepan Gulasekaram, a professor and immigration expert at the Santa Clara University School of Law.

"The judge ruled in the Philadelphia case that 1373 is itself unconstitutional ... because it's directing the way that state and local governments can order their own affairs, how they can legislate, how they can control their own officers," Gulasekaram said, noting that the case could play into arguments regarding SB 54 and AB 103 and the constitutionality of 1373.

AB 450 was different because it forced people and businesses to exercise their rights not to consent to searches, Gulasekaram said.

"There's an open question as to whether the state can mandate ... that people always insist on the full extent of their property and Fourth Amendment rights," he said.

"Probably more directly than the other [two laws] the federal government has a strong argument, I'm not sure it's a winning argument, that 450 goes more directly to hindering federal law enforcement efforts," he said.

The biggest question for the federal government in securing the injunction will likely be proving it is likely to prevail on the merits, Somin said.

"I think the federal government still can say that there might be irreparable harm because as a result of this they're not able to catch some people that they otherwise could catch and that can't be repaired," he added. "On the other hand the state could say waiting for a few weeks is not a big deal with respect to that."

"The government's argument on irreparable harm is likely going to focus on the idea that with the state prohibitions on certain types of enforcement actions, especially with SB 54, the federal government can take less people into custody," Gulasekaram said.

He added that the government would have a hard time showing empirical evidence of that harm.