DOJ Suit Challenging California Sanctuary Laws Could Have Ramifications for State Marijuana Reforms as Well
On March 6 the Department of Justice (DOJ) filed a lawsuit challenging California’s sanctuary state policies as preempted. Those sanctuary policies are designed to mitigate state concerns over the enforcement of federal immigration laws.
The DOJ’s Brief in Support of its Motion for a Preliminary Injunction provides a useful summary of the challenged state laws and why the agency thinks each is preempted (see pp. 1-3):
California is intentionally obstructing the enforcement of federal law in violation of the Supremacy Clause. California has enacted several laws with the express goal of interfering with “an expected increase in federal immigration enforcement actions,” California Committee on the Judiciary Report (Assembly), Apr. 22, 2017, at 1, and shielding the “more than 2.6 million undocumented immigrant[s]” residing in California from any “increase in workplace immigration enforcement.” California Committee on the Judiciary Report (Senate), July 10, 2017, at 1. As a matter of law and in the public interest, this Court should enter a preliminary injunction to enjoin certain provisions of three such laws. The challenged provisions have both the purpose and effect of obstructing enforcement of the federal immigration laws and discriminating against the Federal Government.
The first statute, AB 450, the “Immigrant Worker Protection Act,” restricts private employers from voluntarily cooperating with federal officials who seek to ensure compliance with federal immigration laws in the workplace.
The second statute, AB 103, creates an intrusive inspection and review scheme applicable only to facilities holding civil immigration detainees on the United States’ behalf. The statute authorizes the California Attorney General to examine, among other things, the “due process provided” to civil immigration detainees by the United States, and the “circumstances around their apprehension and transfer” to detention facilities.
The third statute, SB 54, includes the “California Values Act,” which precludes state and local officials from voluntarily providing to the United States information about the release date from state or local criminal custody of criminal aliens who may be subject to removal and are subject to detention by the United States, or other information relevant to the alien’s immigration status. SB 54 also prohibits state and local officials from transferring aliens to the United States when they are scheduled to be released from state or local custody, thus interfering with the United States’ ability to carry out its responsibilities under federal law.
All of these provisions are preempted by federal law. A state lacks the authority to intentionally interfere with private citizens’ ability to cooperate voluntarily with the United States or to comply with federal obligations. Likewise, a state has no authority to target facilities holding federal detainees pursuant to a federal contract for an inspection scheme to review the “due process” afforded during the arrest and detention. Similarly, a state cannot direct state and local employees to refuse to engage in basic cooperation with federal immigration authorities contemplated by federal law. For example, Congress has determined that—rather than having the United States remove all criminal aliens immediately even if incarcerated for state convictions—states should be allowed to vindicate their law enforcement interests in the alien serving their sentence prior to their removal. This decision by Congress to allow states to punish individuals who commit crimes against their citizens hinges on one very reasonable assumption—once the individual has served his or her time under state law, the state will transfer custody to the United States so the person can be properly processed under applicable federal immigration laws. When states release these criminals back onto the streets—rather than notifying DHS of the release and transferring custody—they intentionally subvert the careful balancing of state and federal interests that Congress established in the Immigration and Nationality Act (“INA”). And all the more so given that Congress has enacted 8 U.S.C. § 1373, which expressly prohibits states from restricting their officers from sharing information regarding immigration status with the United States.
California’s acknowledged efforts to stymie immigration enforcement should be enjoined. These state enactments ““stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013) (quoting Arizona v. United States, 567 U.S. 387, 399 (2012)), and thus are preempted by federal law. In addition, they are invalid under the intergovernmental immunity doctrine: far from being laws that “affect the Federal Government incidentally as the consequence of a broad, neutrally applicable rule,” United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2009), they “are invalid” because they “‘regulate the United States directly’” or “‘discriminate against the Federal Government or those with whom it deals.’” Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir. 2014) (quoting North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality op.) (brackets omitted)).
The Brief provides fuller descriptions of (and cites to) the three state laws on pages 4-8. For additional documentation in the suit, you can download the Complaint and the DOJ Press Release accompanying the Complaint by following the hyperlinks. The L.A. Times and Washington Post are also providing ongoing coverage of the suit.
Will the suit prevail? To answer that question, it’s necessary to recognize that California’s sanctuary laws actually regulate two distinct types of non-federal actors: (1) private citizens, and (2) state officials. To simplify somewhat, California’s sanctuary laws discourage these non-federal actors from helping federal immigration agents track down or detain certain removable immigrants. For example, California bars private employers from allowing federal immigration agents to search their premises for undocumented immigrants without a warrant, and it bars state officials from giving federal immigration agents notice when they are about to release certain noncitizens from custody.
Distinguishing between the laws regulating private citizens and the laws regulating state officials is crucial because the state has more latitude to control its own officials (including local ones) than it does to control private citizens. The Supremacy Clause enables Congress to preempt state interference with the activities of private citizens, for example, their cooperation with federal immigration investigations. But federal supremacy over the activities of state officials is circumscribed in an important way. In particular, the anti-commandeering rule limits Congress’s ability to demand state assistance in the enforcement of federal laws. Hence, Congress cannot simply order state officials to track down and detain immigrants who remain in the country illegally. Yet that is essentially what the DOJ is trying to do through its lawsuit. As I explain at length in this article, forcing a state to give federal officials information the states have gathered in their own sovereign capacities effectively conscripts the states into helping to enforce federal law. After all, gathering information about potential violations of the law is an essential part of enforcing the law. To be sure, a state’s refusal to share information will make life more difficult for federal immigration officials. But that’s a necessary and foreseeable consequence of the anti-commandeering rule – i.e., it doesn’t mean that the state’s refusal to assist is somehow preempted.
In sum, I think the DOJ’s challenge to the California laws restricting private firms from cooperating with federal immigration agents will likely prevail. But I think the DOJ’s challenge to the California laws restricting state officials from cooperating with federal immigration agents will likely fail.
So what are the implications for marijuana reforms? The suit (if it results in a clear judicial decision) may shed some light on the preempted status of state marijuana reforms. That’s because there are some (rough) similarities between California’s sanctuary laws and those state marijuana reforms. Namely, states have discouraged the same non-federal actors from helping federal drug control agents achieve their objectives. For example, states have refused to share information they have gathered for their medical marijuana registries and commercial licensing programs with federal law enforcement agents (the article linked above discusses federal attempts to obtain that information). Likewise, some states bar private employers from discriminating against employees who use marijuana, even though those employees are violating federal law. While there are some important differences between sanctuary policies and state marijuana reforms, a court’s ruling on the merits of the DOJ’s immigration suit could provide some insight into whether (or not) courts would find comparable state marijuana reforms preempted.