On The Case

DOJ wants to change the constitutional conversation in sanctuary cities cases

(Reuters) - The Justice Department sued California late Tuesday, asking a federal judge in Sacramento to invalidate three recently enacted state statutes that allegedly interfere with the federal government’s ability to enforce immigration laws. The Justice Department complaint accuses California of deliberately undermining federal authority in violation of the Constitution’s Supremacy Clause.

FILE PHOTO: Immigrant supporters protest during the Los Angeles City Council ad hoc committee on immigration meeting to discuss the city's response to threats by the Trump administration to cut funding from Los Angeles and other jurisdictions which federal officials say are providing sanctuary to illegal immigrants arrested for crimes, in Los Angeles, California, U.S., March 30, 2017. REUTERS/Lucy Nicholson/File Photo

The complaint introduces a new constitutional wrinkle in the year-long fight between the Justice Department and cities, counties and states with policies intended to foster cooperation between immigrant communities and local law enforcement officials. As states and cities have litigated against the Trump administration’s efforts to strip federal funds from so-called sanctuary jurisdictions, they’ve invoked (among other arguments) the 10th Amendment, which, broadly speaking, shields states’ rights. Federal trial judges presiding over the cases have wrestled with the “novel and unique constitutional question,” to quote U.S. District Judge William Orrick of San Francisco in a March 5 opinion, of whether state sovereignty under the 10th Amendment allows states and cities to forbid their officials from helping federal authorities.

The DOJ suit against California tries to shift that constitutional inquiry from the 10th Amendment to the Supremacy Clause – from states’ rights to federal power. After a year of defending its policies against accusations that they impinge on constitutionally-protected state prerogative, the Justice Department has opted for a constitutional counterattack.

Some of the best U.S. Supreme Court precedent for each side comes from cases with similarly strong political shading. States’ rights proponents are relying on 1997’s Printz v. United States, which the court held, in an opinion by Justice Antonin Scalia, that the federal government could not coerce county law enforcement officials from Arizona and Montana to conduct background checks on handgun purchasers while the government assembled a nationwide database. That sort of conscription, Justice Scalia wrote, would breach the Constitution’s scheme of balancing state and federal power by enshrining dual sovereignty.

The Justice Department suit, meanwhile, cites 2012’s Arizona v. United States, which struck down stringent Arizona immigration laws as preempted under the Supremacy Clause. The Supreme Court held, in an opinion by Justice Anthony Kennedy, that Arizona intruded on federal authority over immigration law when it allowed state law enforcement officers to make warrantless arrests of aliens suspected of being in the country illegally. If the Arizona statute were allowed, Justice Kennedy wrote, every state could give itself independent authority to police immigration – and that’s not what Congress intended nor what the Constitution permits.

So far, states and cities have a mixed record with their 10th Amendment arguments that the Justice Department is interfering with their constitutional right to direct state law enforcement. Three federal judges have considered motions for preliminary injunctions by sanctuary jurisdictions facing the loss of federal grants under conditions imposed by DOJ. Two of the judges enjoined DOJ from stripping the grant money, but only one of them found the constitutional argument credible, and neither based the injunction on the 10th Amendment.

Last September, U.S. District Judge Harry Leinenweber of Chicago held the city of Chicago was unlikely to win its argument that its sanctuary policies are constitutionally protected. “At its core, this case boils down to whether state and local governments can restrict their officials from voluntarily cooperating with a federal scheme,” he wrote. “The court has not been presented with, nor could it uncover, any case holding that the scope of state sovereignty includes the power to forbid state or local employees from voluntarily complying with a federal program.” But two months later, U.S. District Judge Michael Baylson of Philadelphia found the city was likely to prevail under the 10th Amendment’s prohibition on the federal government commandeering state resources.

In the most recent preliminary injunction ruling, earlier this week, Judge Orrick denied California’s motion but said he needs more of a record to determine whether California’s sanctuary laws are covered by the 10th Amendment. “The federal government has authority to set immigration policy,” Judge Orrick wrote. “But where that policy collides with the state’s constitutional police powers, it is important to understand the parameters of the federal government’s interpretation of (federal immigration law).”

In the new California suit, DOJ is asking for a preliminary injunction barring enforcement of the California statutes, which impose fines on private employers who cooperate with federal officials seeking immigration information about employees, allow the California AG to inspect certain federal immigration detention centers and restrict state and local law enforcement officials from disclosing some immigration-related information to federal authorities. As Judge Orrick observed in his ruling earlier this week, the laws haven’t been on the books for very long so it could be a challenge for the government to show they’ve caused irreparable harm.

In a speech Wednesday in Sacramento, Attorney General Jeff Sessions said, “California absolutely, it appears to me, is using every power it has - powers it doesn’t have - to frustrate federal law enforcement. So you can be sure I’m going to use every power I have to stop them.”

California AG Xavier Becerra said in response to the DOJ suit that the state’s laws do not impede federal immigration enforcement. “Our state laws work in concert with federal law,” Becerra posted on Twitter. “What we won’t do is change from being focused on public safety. We’re in the business of public safety, not deportation.” Governor Jerry Brown said in a speech Wednesday that the state laws prompting DOJ’s suit were crafted with the cooperation and support of state police chiefs. “Like so many in the Trump administration, this attorney general has no regard for the truth,” Brown said.