Trump administration challenge to most ‘sanctuary state’ laws gets cool 9th Circuit reception

The U.S. Department of Justice got a rough welcome in the 9th U.S. Circuit Court of Appeals on Wednesday, where it was contesting a lower court ruling on three of California's so-called sanctuary state laws.

Last year, the Trump administration challenged three state laws signed in 2017 limiting cooperation with federal immigration authorities. But in a July order, U.S. District Judge John A. Mendez of the Eastern District granted California's motion to dismiss most of the case. U.S. v. California, 18-CV16496 (U.S. 9th Cir., filed Aug. 9,. 2018).

Mendez did allow the federal government to enjoin a portion of AB 450 barring employers from allowing federal immigration officials access to nonpublic areas of a workplace or employee records without a warrant. The three-judge panel hearing the appeal also appeared skeptical of California Deputy Solicitor General Aimee A. Feinberg as she tried to argue the court should also allow the state to enforce that law.

Deputy U.S. Attorney General Daniel B. Tenny was just over a minute into his arguments when he was interrupted by Judge Andrew D. Hurwitz.

Tenny argued California's SB 54, which limits state and local law enforcement's ability to cooperate with immigration officials, violates Congress' intent over how immigrants in custody who entered the country without permission should be handled.

"They're barred from affirmatively helping you take custody," Hurwitz said. "There's nothing in this statute that allows them to prevent you from taking custody."

Hurwitz later appeared to endorse California's argument that the federal government was seeking to appropriate state resources, saying, "Local officials are not being paid to enforce immigration laws."

Tenny then debated the judges on their interpretation of preemption under the Tenth Amendment. He said Congress had intentionally made space for states to enforce their criminal laws against people in the county illegally. He said California's stance has made the job of immigration agents "more difficult and dangerous."Hurwitz, however, said current law does not require state authorities to contact federal immigration authorities before releasing an inmate.

Judge Milan D. Smith Jr. agreed, saying Tenny is citing a nonexistent federal law.

"If [state authorities] were blocking it, if the [state] law said, 'You will prevent the federal government from taking custody,' you would have a slam dunk case and we wouldn't be here,'" Smith said.

The judges said Congress could pass a law stating immigration officials couldarrest people in the country without permission who are in state custody on a regular basis, rather than waiting for the state to release them.

Feinberg conceded that was likely true.

Tenny also took on AB 103, which allows the state attorney general to inspect federal immigration detention centers in the state. The law discriminates because it "singles out activities the federal government uniquely engages in," he said.

Feinberg countered that the state has a legitimate interest in monitoring the activities of federal, state and local law enforcement within the state, as well as the conditions in which inmates are held.

"The state cannot control or dictate the manner in which a federal officer conducts his affairs," Feinberg said. "The focus of AB 103 inspections are the records of the facilities themselves."

The judges grilled Feinberg on AB 450, making clear they were examining the entirety of the law, not just the sections Mendez enjoined.

She defended a portion of the law Mendez allowed to stand demanding employers give notice to workers when federal officials seek to view their employment records, saying federal law generally encourages employees be given notice when issues come up such as "a discrepancy in paperwork."

Hurwitz said the notice requirement appears to place burden on the federal government beyond that placed on state entities. "I don't see any requirement that employers report inspections by state OSHA," Hurwitz said.