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In Jeff Sessions’ lawsuit against California, only one challenge has any merit at all

Erwin Chemerinsky, Berkeley Law dean | March 13, 2018

The United States suit against California is not the first time the federal government has sued a state, but it is the only time I can think of where such a suit was brought against a state government that was trying to do more to protect the rights of its residents.

Typically, the U.S. government has sued a state to enforce civil rights, such as the Obama administration’s litigation against Georgia to protect students with disabilities and against North Carolina for discriminating against transgender students. In fact, throughout American history, “states’ rights” have been invoked as an excuse for state governments to have slavery or maintain segregation or resist federal civil rights laws.

Jeff Sessions

Attorney General Jeff Sessions

Now, though, federalism has been turned on its head and it is California invoking states’ rights to protect its residents from the Trump administration’s repressive federal immigration policies. It is ironic to see conservatives who for so long have championed states’ rights now embracing federal power.

The suit filed by the Justice Department concerns three different California laws. The Trump administration claims that each statute is preempted by federal law because it impedes federal immigration enforcement efforts.

One statute being challenged is the California Values Act, which prevents state and local agencies in California from sharing information with federal immigration officers about criminals or suspects unless they have been convicted of serious crimes. In other words, cities in California are not allowed to tell Immigrations and Customs Enforcement about people in their jails until and unless there has been a conviction for a serious crime.

Astoundingly, after this was enacted, Thomas D. Homan, the acting director of United States Immigration and Customs Enforcement, said that the state elected officials who support the policy should be arrested. “We’ve got to start charging some of these politicians with crimes,” he said.

Under Supreme Court precedents, this California law should be upheld. The Supreme Court has ruled that the federal government cannot coerce state and local governments to cooperate with federal mandates.

For example, in Printz v. United States in 1997, the court declared unconstitutional a provision of the federal Brady Handgun Control Act which required that state and local governments do background checks before issuing permits for firearms. The court said that this impermissibly commandeered state and local governments. Likewise, forcing state and local governments to share information is unconstitutionally coercing their actions.

A second aspect of the federal suit concerns a part of the state budget bill that gives the state attorney general the power to monitor immigration detention centers in the state. A state has no authority to monitor federal facilities.

But this is about local jails that contract with the federal government to hold detainees and private facilities that contract with the federal government. Here, California is again on strong constitutional grounds to make sure that those detained in the state are treated humanely and their rights are respected. The state is not impeding the federal government’s immigration policies when it inspects the conditions of detention facilities.

Finally, the lawsuit challenges the California Immigrant Worker Protection Act, which prohibits employers, or persons acting on behalf of the employer, from providing “voluntary consent” to the entry of an immigration enforcement agent to “any nonpublic areas of a place of labor.” The law also prohibits employers, or persons acting on behalf of the employer, from providing “voluntary consent” to an immigration enforcement agent “to access, review, or obtain the employer’s employee records.”

Employers who violate these provisions are subject to civil penalties of $2,000 to $5,000 for a first violation, and $5,000 to $10,000 for each subsequent violation. Simply put, the law prohibits employers from allowing immigration officials into the non-public areas of workplaces or from sharing information about employees unless there is a subpoena or a warrant.

This provision is most vulnerable to challenge. The federal government has its strongest claim that the state is interfering with federal immigration enforcement. At the same time, the federal law is not compelling any action by the state or local governments.

Underlying this lawsuit are vastly different perspectives about immigration law. Donald Trump and Jeff Sessions see undocumented immigrants as dangerous criminals who must be deported. California sees people who contribute greatly to the states’ economy and views the federal policy as one that will break up families, deport Dreamers, and ruin lives.

This is a battle that will continue throughout the Trump years in the White House. The lawsuit is just the most recent chapter in this fight.

Crossposted from the Sacramento Bee. 

Comments to “In Jeff Sessions’ lawsuit against California, only one challenge has any merit at all

  1. I would expect that Governor Brown and the California Assembly and Senate would relish the opportunity to have their day in court to prove the Constitutionality of their laws.

    The statements that I have read from the Governor, State Attorney General and State Senate President Pro Tempore and indeed the author of this paper have all stated their firm belief that California’s laws are fully constitutional.

    I predict that this case will go all the way to the Supreme Court of the United States with the State’s firm belief it will triumph. On the other hand, the Federal Government also thinks it will prevail.

    Stay tuned.

  2. Judge Pfaelzer in overturning Proposition 187 said that a state cannot have its own immigration scheme. It goes both ways.

  3. Civics 101

    Legislative Branch: The Congress is the Legislative Branch. Its main function is to make laws. It also oversees the execution of these laws and checks various executive and judicial powers.

    Executive Branch: The President, Vice President, and other executive officials make up the Executive Branch. The main function of this branch is to execute the laws created by Congress.

    Judicial Branch: The Supreme Court and the lower courts compose the Judicial Branch. The judiciary must interpret the laws of the United States.

    1. The Legislative Branch has complete authority over immigration. https://www.law.cornell.edu/wex/immigration
    “Federal immigration law determines whether a person is an alien, the rights, duties, and obligations associated with being an alien in the United States, and how aliens gain residence or citizenship within the United States. It also provides the means by which certain aliens can become legally naturalized citizens with full rights of citizenship. Immigration law serves as a gatekeeper for the nation’s border, determining who may enter, how long they may stay, and when they must leave.”

    2. The Executive Branch executes laws created by Congress
    https://www.law.cornell.edu/wex/immigration
    “Deportation refers to the official removal of an alien from the United States. The U.S. government can initiate deportation proceedings against aliens admitted under the INA that commit an aggravated felony within the United States after being admitted. An alien’s failure to register a change of address renders the alien deportable, unless the failure resulted from an excusable circumstance or mistake. If the government determines that a particular alien gained entry into the country through the use of a falsified document or otherwise fraudulent means, the government has the grounds to deport.”
    “Other common grounds for deportation include the following: aiding or encouraging another alien to enter the country illegally; engaging in marriage fraud to gain U.S. admission; participating in an activity that threatens the U.S.’s national security; voting unlawfully; and failing to update the government with a residential address every three months, regardless of whether the address has changed.”

  4. Heroin possession is not a serious crime, drug addiction is a disease.
    Manufacturing narcotics is a serious crime as it has potential to hurt others.
    Being deporting and re-entering for work is not a serious crime as it does not hurt anyone else and it supports the US economy.

    Perhaps you might consider that California was once a part of Mexico until the US stole it from them. Around the time my ancestors were stuck at Donner Pass.

  5. “In other words, cities in California are not allowed to tell Immigrations and Customs Enforcement about people in their jails until and unless there has been a conviction for a serious crime.”

    Isn’t heroin possession a serious crime?
    Isn’t manufacturing narcotics a serious crime?
    Isn’t being deported and reentering multiple times serious crimes?

    ——————
    José Inez García Zárate (or Juan Francisco López-Sánchez),[18] of Guanajuato, Mexico, is an illegal alien who was deported from the U.S. a total of five times, most recently in 2009.[19] He was on probation in Texas at the time of the shooting.[20] He had seven felony convictions. When he was apprehended, Zarate was listed as 45 years old by police, but as 52 in jail records.[21]

    Zarate arrived in the U.S. sometime before 1991, the year he was convicted of his first drug charge in Arizona. In 1993, he was convicted three times in Washington state for felony heroin possession and manufacturing narcotics. Following another drug conviction and jail term, this time in Oregon, the U.S. Immigration and Naturalization Service (INS) deported Zarate in June 1994. However, Zarate returned to the U.S. within two years and was convicted again of heroin possession in Washington state. He was deported for the second time in 1997.[18]

    On February 2, 1998, Zarate was deported for the third time, after reentering the U.S. through Arizona. United States Border Patrol caught him six days later at a border crossing, and a federal court sentenced Zarate to five years and three months in federal prison for unauthorized reentry. Immigration and Customs Enforcement (ICE), successor of the INS, deported Zarate in 2003 for his fourth deportation. However, he reentered the U.S. through the Texas border and got another federal prison sentence for reentry before being deported for the fifth time in June 2009.[18]

    Less than three months after his fifth deportation, Zarate was caught attempting to cross the border in Eagle Pass, Texas. He pleaded guilty to felony reentry; upon sentencing, a federal court recommended Zarate be placed in “a federal medical facility as soon as possible”.[18]

    On March 26, 2015, at the request of the San Francisco Sheriff’s Department (SFSD), United States Bureau of Prisons (BOP) had turned Zarate over to San Francisco authorities for an outstanding drug warrant.[22] San Francisco officials transported Zarate to San Francisco County Jail on March 26, 2015, to face a 20-year-old felony charge of selling and possessing marijuana after Zarate completed his latest prison term in San Bernardino County for entering in the country without the proper documents.[23]

    U.S. Immigration and Customs Enforcement (ICE) had issued a detainer for Zarate requesting that he be kept in custody until immigration authorities could pick him up. However, as a sanctuary city, its “Due Process for All” ordinance[24] restricted cooperation with ICE to cases only where the immigrant had both current violent felony charges and past violent felony convictions; therefore, San Francisco disregarded the detainer and released him.[25][26]

    (wikipedia)

  6. The DACA Program was an Obama Administration Executive Action and is not the law!

    Federal immigration law determines whether a person is an alien, the rights, duties, and obligations associated with being an alien in the United States, and how aliens gain residence or citizenship within the United States. It also provides the means by which certain aliens can become legally naturalized citizens with full rights of citizenship. Immigration law serves as a gatekeeper for the nation’s border, determining who may enter, how long they may stay, and when they must leave.

    Congress (Legislative Branch) has complete authority over immigration.

    https://www.law.cornell.edu/wex/justiciability

  7. How law defines immigration–legal and illegal? The federal laws on immigration are there. In the article, the writer changed the illegal immigrants to “undocumented immigrants”–it’s a logical fallacy.

    1. Law doesn’t protect illegal conduct. What federal law protects illegal conduct? None, and shouldn’t have if any.
    2. Illegal immigrants are illegal.
    3. Therefore, California government is wrong.

    That means how can you use laws to protect illegal conduct?

    The claim “protect the rights of its residents” makes an illogical statement in that the illegal immigrants aren’t lawful residents who broke the federal laws. Rather than getting protected, they need to get deported. The examples he used to rationalize his claim aren’t related logically as well.

    Fire the law dean. What a shame!

    • Just because something is the law doesn’t make it morally right. In California, at one time in its history, Chinese immigrants were legally discriminated against. Does that make it right. Plessy v. Ferguson was the law? Does that make it right? An illegal alien has been living in the US for the past twenty years, paying taxes, forming a family, never arrested for anything. He is being deported (legally), and thereby his family is being broken up. Is that right?

  8. If you read the rest of the first section of the amendment, Dave, you’ll see that it continues:

    “… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    It protects the privileges and immunities of citizens, and guarantees due process and equal protection to everyone, citizen or not. (“…any person…”)

  9. The word “citizen” is missing from this blog post.

    Using the words “resident” and “undocumented immigrant” instead of “citizen” is clever, but false.

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (14th Amendment)

    The flagrant dishonesty by the left and by the right regarding non-citizens is a huge problem.

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