On Tuesday, the Justice Department sued California claiming parts of three new state laws intended to protect immigrants violate the United States Constitution. This next step in the Trump administration’s hardline immigration enforcement practices isn’t a surprise. On the contrary, the ongoing dispute between federal officials and the country’s most populous and economically productive state has been leading in this direction for at least fourteen months.
Now that the complaint has been filed, the irony of the Trump administration’s main legal claim is remarkable. The thrust of the Justice Department’s legal argument is that the states have to help it accomplish its immigration law enforcement goals. Clearly, California is interested in helping to the extent Attorney General Sessions and President Trump would like. Turning back from conservative legal principles stretching back to the states’ rights era of anti-integration battles, the Justice Department is trying to force California to do what it very obviously does not want to do. This is not a unique position for the federal government to take in relation to a state. Federal law regularly makes demands of state law. The Trump administration’s position is remarkable only because Republicans have long embraced state and local control. Here, the tables have obviously turned, revealing the legal dispute’s dirty political underbelly.
Given that the Justice Department strategy turns on the relationship between the federal government and a state government, two constitutional provisions will be key: the Supremacy Clause and Tenth Amendment. Below are some very preliminary thoughts about those claims.
The Supremacy Clause states that federal law beats out state law, but only when there is a conflict between the two or when state law interferes with federal law. Known as preemption, the Supreme Court has identified three versions of this important legal doctrine: express preemption, implied conflict preemption, and implied field preemption. The Justice Department does not claim that express preemption is relevant here. Instead, it points to conflicts between federal and state laws. In its decision striking down most of Arizona’s infamous Senate Bill 1070, the Supreme Court explained that “state laws are preempted when they conflict with federal law. This includes cases where ‘compliance with both federal and state regulations is a physical impossibility,’ and those instances where the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ Arizona v. United States, 567 U.S. 387, 399–400 (2012)
The Tenth Amendment limits the power of the federal government. It does not limit the state’s authority to act. Indeed, as the Court explained in its decision upholding important parts of the Affordable Care Act, the limited scope of powers granted by the Constitution to the federal government “does not apply to the States, because the Constitution is not the source of their power.” National Federation of Independent Business v. Sebelius, 567 U.S. 519, 535 (2012). The states, in other words, have broad authority to act, while the federal government’s powers are limited. This system of dual sovereigns ensures that power remains dispersed. In a decision declaring unconstitutional a federal law requiring instant background checks of gun buyers, the Supreme Court explained, “The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other….” Printz v. United States, 521 U.S. 898, 920 (1997).
Even where Congress is authorized to act, however, the federal government can’t bully the states to come along. The states are independent political entities and the federal government must respect them as such. “It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority. It is no more compatible with this independence and autonomy that their officers be ‘dragooned’ into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws,” the Court wrote in Printz.
Of course, with the power of the federal treasury at its disposal, the federal government’s limited powers can nonetheless carry substantial weight. Even then, the federal government can’t wield its wealth as a blunt weapon. Congress, the Court wrote in Printz, can’t “forc[e] state governments to absorb the financial burden of implementing a federal regulatory program.”
While the Justice Department points to the Supremacy Clause throughout the complaint, we can be sure that California will defend itself by pointing to the Tenth Amendment’s tight controls on the power of the federal government to force states to do its bidding.
The Justice Department has attacked parts of California’s three recent efforts to protect immigrants. As a result, there will be a lot for the court to unpack. Some of these are new claims, others are not. There are already several courts considering the limits of 8 U.S.C. § 1373, for example, so the thrust of the claims against S.B. 54 are not novel. If anything, the complaint puts front and center the role of the Fourth Amendment, though it doesn’t acknowledge as much.
The Justice Department’s challenge to the detention center inspection requirements of A.B. 103 ask the court to decide whether this inspection is simply an extension of the oversight power that the state unquestionably does have. For example, no one doubts that the state can inspect for compliance with its own health and safety laws; indeed, the complaint admits that.
Lastly, the claim against A.B. 450 will need to account for the fact that federal law, 8 U.S.C. § 1324a(e)(2), requires employers to give ICE “reasonable access” to employment records. The state law requiring employers to notify employees about upcoming inspections seems unlikely to impede ICE’s reasonable access, but a court grappling with this claim may have to decide whether it is unreasonable to expect ICE to issue a subpoena or obtain a judicial warrant.
Reading the complaint, I am struck by the tone that the Justice Department is taking. It repeatedly claims that California is unlawfully discriminating against its immigration enforcement priorities. At one point, the complaint actually claims that AB 450’s requirement that employers inform employees about upcoming ICE inspections “discriminat[e] against federal immigration enforcement.” While a person or non-human party can suffer discrimination, it’s not clear to me how a type of law enforcement activity can suffer discrimination.
It will be interesting to see how President Trump and Attorney General Sessions respond when the courts start issuing decisions in this case. President Trump has frequently claimed that the Ninth Circuit, which includes California, is overly critical of his policies. For his part, Attorney General Sessions infamously criticized an injunction issued by federal judge in Hawaii saying, “I really an amazed that a judge sitting on an island in the Pacific can issue an order that stops the President.” Hawaii is also part of the Ninth Circuit.