By David A. Robinson, Esq. and Anjuli B. Woods, Esq

Despite all the invective political banter, surprisingly few know the answer to this question.  Many assume it is because President Trump is unhinged (or being controlled by the Russians).  Others think it is because Governor Brown and the Democratic super majority who control California public policy are out of control.  Surprisingly, though, the current legal battle is just the latest chapter in our Nation’s long struggle to define the boundary between state sovereignty and federal supremacy. 

But what triggered this latest round of a long-standing dispute?

Senate Bill 54 and Assembly Bill 450

Senate Bill 54 (SB 54), also known as the “California Values Act,” was introduced during the first day of the 2017 California legislative term in response to President Donald Trump’s stated plan to crack down on sanctuary cities and step up immigration enforcement.  Its premise is local and state law enforcement authorities should not be allowed to use resources, including personnel or facilities, to investigate or arrest people for federal immigration enforcement purposes. The law builds on a 2013 state law called the California Trust Act that prohibited local agencies from holding potentially deportable immigrants for U.S. Immigration and Customs Enforcement (ICE) unless those detainees had been convicted of serious or violent felonies, or misdemeanors that could be classified as felonies.

While SB 54 does not permit local and state officials to hold undocumented residents to aid Border or immigration law enforcement, it does allow for the transfer of inmates on hundreds of offenses, including assault, battery, sexual abuse and exploitation, rape, crimes endangering children, burglary, robbery, theft, fraud, forgery, a crime resulting in death, gang-related offenses, some domestic violence offenses, drug and weapon-related offenses and felony (but not misdemeanor) driving under the influence convictions.

Here are some other things California law enforcement can no longer do under SB 54:

  • Ask someone about their immigration status or detain them solely because of their status.
  • Hold someone in jail past their release date at ICE’s request.
  • Assist in arrests based on civil immigration warrants.
  • Provide release dates or other information about a detainee unless that information is available to the public or the individual has a criminal conviction for one of the excepted crimes or has a qualifying criminal charge and has had a probable cause finding as to that charge.
  • Provide office space for federal immigration authorities to use in local jail facilities.
  • Cooperate with ICE in cases where an individual has been arrested, detained or convicted for an offense that is a misdemeanor but was a felony prior to the passage of Prop. 47, which reduced penalties for some crimes in California.

Here’s what law enforcement can do:

  • Respond to notification and transfer requests from ICE when the individual has been convicted or charged with certain crimes specified by state law.
  • Respond to notification requests if release dates and times are already publicly available.
  • Permit ICE agents to interview someone in jail and prison if certain requirements are met.
  • Participate in a joint law enforcement task force as long as the primary purpose is not immigration enforcement.

On March 6, 2018, the United States of America sued California in the United States District Court for the Eastern District of California (the “USA Lawsuit.”) The USA Lawsuit seeks a judicial declaration invalidating SB 54 and two other post-Trump California laws: i.e., Assembly Bill 450 (“AB 450”), aka the “Immigrant Worker Protection Act,” and Assembly Bill 103 (“AB 103”), creating an inspection and review scheme that requires the California Attorney General of California to investigate the immigration enforcement efforts of federal agents.  

AB 450 prohibits employers from voluntarily cooperating with federal immigration officials.  Among other things, AB 450 purports to prohibit employers from “voluntary consent[ing] to an immigration enforcement agent … enter[ing] any nonpublic areas of a place of labor” without a warrant or “voluntary consent[ing] to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or judicial warrant” or notice of inspection.  AB 450 also requires employers to post notice of any immigration-related inspections of I-9 forms or other employment records within 72 hours of receiving a notice of the inspection.  AB 450’s legislative history confirms that the bill was intended to reduce the risk of deportation. Assembly Floor Analysis, Assembly Bill 450, at 3 (Cal. Sept. 13, 2017).

In sum, the USA Lawsuit alleges all three laws “are preempted by federal law and impermissibly discriminate against the United States, and therefore violate the Supremacy Clause of the United States Constitution.”

With respect to SB 54 in particular, the USA Lawsuit alleges:

SB 54 limits state and local cooperation with federal immigration enforcement in a number of ways ... These provisions contain limited exceptions ... The limited subset of criminal violations does not match federal law governing what may serve as the predicate for inadmissibility or removability, including listing a set of crimes more narrow than those that render an alien removable. See 8 U.S.C. §§ 1182(a)(2), 1227(a)(2).  And it does not match the set of criminal offenses that require the federal government to detain such aliens upon their release from state or local custody. Id. § 1226(c).

California law does not impose these restrictions on other forms of information sharing on other topics, nor does it restrict transfers of individuals to other law enforcement agencies in this way.

These provisions impermissibly prohibit even the most basic cooperation with federal officials.

As noted above, federal law contemplates that criminal aliens in state custody who may be subject to removal will complete their state or local sentences first before being detained by the United States, but that federal immigration detention for immigration proceedings or for removal will begin upon the alien’s release from state custody. 8 U.S.C. § 1226(c); § 1231(a)(4).  Additionally, federal law contemplates that DHS will be able to inspect all applicants for admission, and take all appropriate action against those found to be inadmissible to the United States, even those that may have been transferred to the custody of state and local law enforcement pending such a state and local prosecution. See 8 U.S.C. §§ 1182, 1225(b)(2); 8 C.F.R. § 235.2. And, to facilitate coordination between state and local officials and the United States, Congress expressly prohibited any federal, state, or local government entity or official from prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from, DHS “information regarding the citizenship or immigration status of an individual.” 8 U.S.C. § 1373(a); see also 8 U.S.C. § 1644. Although SB 54 purports to be consistent with section 1373, see Cal. Gov’t Code §7284.6(e), sections 7284.6(a)(1)(C) and (D) explicitly forbid the sharing of information covered by 8 U.S.C. § 1373.

... By restricting basic information sharing and by barring the transfer to DHS of aliens in state or local custody upon their release through the means provided for by federal law, SB 54 requires federal immigration officers to either engage in difficult and dangerous efforts to re-arrest aliens who were previously in state custody, endangering immigration officers, the alien at issue, and others who may be nearby, or to determine that it is not appropriate to transfer an alien to state or local custody in the first place, in order to comply with their mission to enforce the immigration laws. California has no lawful interest in assisting removable aliens to evade federal law enforcement.

These provisions violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement, as well as (with respect to the information- sharing restrictions) expressly violating 8 U.S.C. § 1373(a).

 

So what is the State’s response?  Are any of these arguments correct?  Are they new?  To find out, stayed tuned for the next edition of this co-authored essay.  Mr. Robinson explains the arguments championed by the United States government and its allies; Ms. Woods explains the position advanced by the State of California and the numerous groups supporting these three laws.