In March, the Department of Justice filed suit against the State of California alleging that certain sections of California Law are obstructing the enforcement of Federal immigration law, and imposing an intrusive burden on such administration. The suit seeks relief in the form of a permanent injunction on the enforcement of state laws in question and declaration that they are unconstitutional.

Three laws in question:

AB 450 Summary:

  • ICE shall not be provided with voluntary access to non-public areas at places of employment unless accompanied by a judicial warrant (assuming Article III court?) or otherwise required by Federal law.
  • Employers must provide employees 72-hours advanced notice of workplace inspections, and must provide employees with notice of the results of such inspection
  • Prohibition on reverifying the employment status of an employee unless required by law, subject to a civil penalty of up to $10,000

AB 103 Summary:

  • Provides for California Attorney General or his designee “to engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California,” to examine the “due process provided” to civil immigration detainees, and “the circumstances around their apprehension and transfer to the facility,” and “…shall be provided all necessary access for the observations necessary to effectuate reviews required pursuant to this section, including, but not limited to, access to detainees, officials, personnel, and records.”

SB 54 Summary

  • Prohibition of cooperation with immigration enforcement inclusive of State and local officials. Section 7284.6 prohibits state and local law enforcement officials, other than employees of the California Department of Corrections, from, among other things: “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information,” Cal Gov’t Code§ 7284.6(a)(1)(C); providing “personal information,” including (but not limited to) an individual’s home address or work address. State and local law enforcement agencies may “[t]ransfer an individual to immigration authorities” only if the United States presents a “judicial warrant or judicial probable cause determination,” or the individual in question has been convicted of one of a limited set of enumerated felonies or other serious crimes.

Of course I don’t believe either law on either side of this dispute is Constitutional. First, while it’s nothing new, though it’s new information for me, there’s an issue with the majority of immigration law being administered entirely within the Dept. of Justice rather than by Article III courts. So basically, there are no warrants involved, at least not in the way most of us understand them.

A higher level summary of the situation might be, due to the references to “judicial warrants” throughout the State laws in question, which I am assuming means warrants from Article III courts, that the State is not interested in allowing cooperation with Federal authorities more than is absolutely required by law, not recognizing the Federal immigration administration apparatus as constitutional. Imagining the implications of the limited check on the power involved in immigration enforcement, there isn’t a whole lot to disagree with in the assumption that the immigration administration apparatus isn’t constitutional.

Even though I can read the Constitution and the Bill of Rights plainly, and my reading comprehension is at least near the level of average, decades of this enforcement has gone on as either unchallenged (doubtful) or upheld (likely); so this is just my opinion based on text of the 4th, 5th , and 14th amendments:  it is an absurd abuse of “probable cause” for ICE to go around daily raiding and detaining, then adding the abuse of running the detainees through an extra-constitutional judicial process run by the Executive Branch on top. If my opinion mattered (as I occasionally enjoy pretending it does), the entire immigration enforcement system would have to go, and having it dismantled yesterday would not be soon enough. Of course, my opinion doesn’t matter regarding much of anything; and though I consistently score as philosophically extreme on the side of freedom, individual sovereignty and dignity, I ‘get’ the kind of world in which I exist and I certainly am not holding my breath for this kind of development.

The Supreme Court over the years has established an anti-commandeering principle that in a simplistic form means that the Federal government cannot commandeer State legislative authority or resources in enforcement of Federal law. While not present anywhere in the Constitution itself, it appears to be an effort to provide meaning to the 10th amendment without enforcing it as it is naturally read; a sort of compromise that allows broad interpretation of Federal enumerated powers while leaving states with something left to do.

A relevant case that contains an explanation of the anti-commandeering rationale is Murphy v. National Collegiate Athletic Assn. (2018) (Notations and citiations omitted)

The  legislative  powers  granted  to  Congress  are  sizable, but  they  are  not  unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers.  Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.    And  conspicuously  absent  from  the  list  of  powers given to Congress is the power to issue direct orders to the governments  of  the  States. The  anticommandeering  doctrine  simply  represents  the  recognition  of  this  limit  on congressional authority.

Non-cooperation by State officials, in not providing the information sought or assisting in immigration-related apprehensions is part of the allegation of obstruction, which is likely incorrect, and elements of Federal immigration law that demand cooperation are likely to be severed.

Though state resources cannot be commandeered, I have, however, not heard of or seen a precedence involved with the question of whether a state can compel private citizens to refuse cooperation. My guess is, based on the decision cited above, answer to that question is probably no.

(Notations and citations omitted)

Justice O’Connor’s opinion for the Court [New York v. United States, 505 U.S.  144 (1992)] traced this rule to the basic structure of government established under the Constitution.   The  Constitution,  she  noted,  “confers  upon Congress  the  power  to  regulate individuals,  not  States.” In this respect, the Constitution represented a sharp break from the Articles of Confederation.    “Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.” Instead, Congress was limited to acting “‘only upon the States.’” Alexander Hamilton, among others, saw this as “‘[t]he great and radical vice in . . . the existing Confederation.’”  The Constitutional Convention considered plans  that  would  have  preserved  this  basic  structure,  but  it rejected them in favor of a plan under which “Congress would  exercise  its  legislative  authority  directly  over  individuals rather than over States.

And in this respect, the State’s dictate of non-cooperation to private citizens is likely to eventually be overruled. But the question is when because whether it can be resolved in a case filed by the Dept. of Justice as a form of obstruction remains to be seen. The Department would have to prove harm which I think is harder to do than if the case were to be brought by someone who was fined pursuant to the laws in question. Just imagine a case where Joe Citizen went to a Federal Court claiming to have been harmed by the state for cooperating with Federal authorities – one and done.

I don’t have specific information on the part of the complaint filed by the Department claiming unwarranted intrusion regarding detention facility inspections or about as the complaint pertains to requirements imposed by California law on private citizens over above those contained in Federal law, such as the 72-hour notice of inspection provisions employers must provide to employees and reverification. If I were to speculate, I’d say that any previous cooperation in the matter of facility inspection by Federal authorities was a courtesy if not provided for under Federal law. It could be demonstrated that that the 72-hour inspection notice provision is an obstruction, and may also be overruled on the basis that it runs at cross-purposes with Federal law. But I am not particularly interested in helping that along (as if the government lawyer need any help from me!).

In summary, my best guess is that, of the three State laws in question, the only provision that will be left standing after everything is settled is the requirement that State officials not cooperate with immigration enforcement.