On March 6 the Department of Justice (DOJ) filed a lawsuit challenging California\u2019s sanctuary state policies as preempted. Those sanctuary policies are designed to mitigate state concerns over the enforcement of federal immigration laws.<\/p>\n
The DOJ\u2019s Brief in Support of its Motion for a Preliminary Injunction<\/a> provides a useful summary of the challenged state laws and why the agency thinks each is preempted (see pp. 1-3):<\/p>\n 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 \u201can expected increase in federal immigration enforcement actions,\u201d California Committee on the Judiciary Report (Assembly), Apr. 22, 2017, at 1, and shielding the \u201cmore than 2.6 million undocumented immigrant[s]\u201d residing in California from any \u201cincrease in workplace immigration enforcement.\u201d 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.<\/p>\n The first statute, AB 450, the \u201cImmigrant Worker Protection Act,\u201d restricts private employers from voluntarily cooperating with federal officials who seek to ensure compliance with federal immigration laws in the workplace.<\/p>\n The second statute, AB 103, creates an intrusive inspection and review scheme applicable only to facilities holding civil immigration detainees on the United States\u2019 behalf. The statute authorizes the California Attorney General to examine, among other things, the \u201cdue process provided\u201d to civil immigration detainees by the United States, and the \u201ccircumstances around their apprehension and transfer\u201d to detention facilities.<\/p>\n The third statute, SB 54, includes the \u201cCalifornia Values Act,\u201d 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\u2019s 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\u2019 ability to carry out its responsibilities under federal law.<\/p>\n All of these provisions are preempted by federal law. A state lacks the authority to intentionally interfere with private citizens\u2019 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 \u201cdue process\u201d 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\u2014rather than having the United States remove all criminal aliens immediately even if incarcerated for state convictions\u2014states 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\u2014once 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\u2014rather than notifying DHS of the release and transferring custody\u2014they intentionally subvert the careful balancing of state and federal interests that Congress established in the Immigration and Nationality Act (\u201cINA\u201d). And all the more so given that Congress has enacted 8 U.S.C. \u00a7 1373, which expressly prohibits states from restricting their officers from sharing information regarding immigration status with the United States.<\/p>\n California\u2019s acknowledged efforts to stymie immigration enforcement should be enjoined. These state enactments \u201c\u201cstand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,\u201d 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 \u201caffect the Federal Government incidentally as the consequence of a broad, neutrally applicable rule,\u201d United States v. City of Arcata, 629 F.3d 986, 991 (9th Cir. 2009), they \u201care invalid\u201d because they \u201c\u2018regulate the United States directly\u2019\u201d or \u201c\u2018discriminate against the Federal Government or those with whom it deals.\u2019\u201d 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)).<\/p>\n<\/blockquote>\n 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<\/a> and the DOJ Press Release<\/a> accompanying the Complaint by following the hyperlinks. The L.A. Times<\/a>\u00a0 and Washington Post<\/a> are also providing ongoing coverage of the suit.<\/p>\n Will the suit prevail? To answer that question, it’s necessary to recognize that California\u2019s sanctuary laws actually regulate two distinct types of non-federal<\/em> actors: (1) private<\/em> citizens, and (2) state<\/em> officials. To simplify somewhat, California\u2019s 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.<\/p>\n 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,\u00a0for example, their cooperation with\u00a0federal 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\u2019s 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\u00a0essentially what the DOJ is\u00a0trying to do through its lawsuit.\u00a0As I explain at length in this article<\/a>, forcing a state to give federal\u00a0officials 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,\u00a0a state\u2019s refusal to share information will make life more difficult for federal immigration officials. But that\u2019s a necessary and foreseeable consequence of the anti-commandeering rule \u2013 i.e., it doesn\u2019t mean that the state\u2019s refusal to assist is somehow preempted<\/em>.<\/p>\n In sum,\u00a0I think the DOJ\u2019s challenge to the California laws restricting private firms from cooperating with federal immigration agents will likely prevail. But I think the DOJ\u2019s challenge to the California laws restricting state officials from cooperating with federal immigration agents will likely fail.<\/p>\n 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\u2019s 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\u00a0commercial licensing\u00a0programs with\u00a0federal law enforcement agents (the article linked above discusses federal attempts to\u00a0obtain that information). Likewise, some states bar private employers from discriminating against\u00a0employees who use marijuana,\u00a0\u00a0even though those employees are violating federal law. While there are some important differences between sanctuary policies and state marijuana reforms, a court\u2019s ruling on the merits of the DOJ\u2019s immigration suit could provide some insight into whether (or not) courts would find comparable state marijuana reforms preempted.<\/p>\n","protected":false},"excerpt":{"rendered":" On March 6 the Department of Justice (DOJ) filed a lawsuit challenging California\u2019s sanctuary state policies as preempted. Those sanctuary policies are designed to mitigate state concerns over the enforcement of federal immigration laws. The DOJ\u2019s Brief in Support of its Motion for a Preliminary Injunction provides a useful summary of the challenged state laws…<\/p>\n","protected":false},"author":6789,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1,4],"tags":[272,120,6,64,61,271,265,269,15,5,270,267,268,59,264,56,266],"class_list":["post-384","post","type-post","status-publish","format-standard","hentry","category-news","category-updates","tag-alien","tag-california","tag-cannabis","tag-department-of-justice","tag-doj","tag-immigrant","tag-immigration","tag-implications","tag-marihuana","tag-marijuana","tag-noncitizens","tag-preempt","tag-preempted","tag-preemption","tag-sanctuary","tag-sessions","tag-suit"],"_links":{"self":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/384","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/users\/6789"}],"replies":[{"embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/comments?post=384"}],"version-history":[{"count":1,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/384\/revisions"}],"predecessor-version":[{"id":385,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/posts\/384\/revisions\/385"}],"wp:attachment":[{"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/media?parent=384"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/categories?post=384"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/my.vanderbilt.edu\/marijuanalaw\/wp-json\/wp\/v2\/tags?post=384"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n