US DOJ is fighting 2 California immigration laws

The U.S. Department of Justice is trying to keep alive its challenge to one California law and preserve an injunction against portions of another.

In a reply brief filed Tuesday, a team led by Acting Assistant Attorney General Jeffrey Bossert Clark argued for further discovery to allow the office to "prove the discriminatory negative impacts of both AB 103 and AB 450 on the federal government's ability to enforce the immigration laws." United States of America v. State of California, 2:18-cv-00490-JAM-KJN (E.D. Cal., filed March 6, 2018).

In the original complaint in the case, the federal government challenged three so-called sanctuary laws the state passed in 2017 in response to crackdowns on illegal immigration. AB 103, that year's public safety omnibus bill, contained provisions allowing the state to inspect immigration detention facilities within its borders.

AB 450 prevented employer cooperation with immigration inspectors and demanded they give notice to workers of inspections. The third law challenged in the complaint was SB 54, which restricted law enforcement cooperation with immigration officials.

In July 2018, U.S. District Judge John A. Mendez declined to approve preliminary injunctions against SB 54 and AB 103. But he struck down some provisions of AB 450. Forbidding employer cooperation with immigration officials, he said, went too far in restricting employer's behavior.

The federal government then appealed to the 9th U.S. Circuit Court of Appeals. That panel mostly upheld the lower court ruling, but found that portions of AB 103 demanding the state DOJ be able to inspect immigration lockups may be federal preempted.

The brief this week argued the lower court should take an expansive view of the appellate ruling and reexamine the employee notice provisions in AB 450 and the inspection portions of AB 103. Responding to arguments by the state's attorneys that these requests were extraordinary and could violate the state's sovereignty, Clark and his team said Mendez had made a clear error in his earlier rulings and reconsideration is warranted.

"The United States, like other plaintiffs, simply seeks either reconsideration of prior dismissals, or leave to amend its complaint, in order to proceed with litigation and obtain discovery," wrote Joshua A. Press, a trial attorney with the DOJ trial division.

The federal brief then argued that in its briefs seeking to dismiss the challenge to the laws, it is seeking to "pre-litigate" the case. Instead, the federal brief argued, further litigation and discovery would show the laws go to far in imposing economic burdens on the federal government.

"Defendants allege that the 9th Circuit 'concluded, as this court had, that plaintiff is unlikely to succeed in its claims,' ... but a court is prohibited from dismissing a case because it believes that the evidence is 'unlikely' to support a plaintiff's claims. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)," Press wrote.

The ongoing case has garnered significant interest from groups with an stake in the immigration debate. Earlier this month, attorney Monica T. Guizar with the Service Employees International Union filed an amicus brief arguing Mendez should dissolve his own injunction against provisions of AB 450. She argued that not doing so unlawfully imposes "a continuing verification obligation on employers" that was never approved by Congress.

Labor Code Section 1019.2 is "entirely consistent with federal law," Guizar wrote. "It poses no obstacle to immigration enforcement and, indeed, authorizes employers to comply with federal law and includes provisions mirroring federal law."