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Sessions is suing California over its “sanctuary” laws. I asked 8 legal experts who will win.

The DOJ lawsuit is a major escalation in the Trump administration’s fight against “sanctuary cities.”

People protest outside a speech by US Attorney General Jeff Sessions March 7, 2018, in Sacramento, California. Sessions and the Department of Justice are suing California over its “sanctuary laws.”
People protest outside a speech by US Attorney General Jeff Sessions March 7, 2018, in Sacramento, California. Sessions and the Department of Justice are suing California over its “sanctuary laws.”
AFP/Getty Images

Attorney General Jeff Sessions is suing the state of California on behalf of the Trump administration over the state’s “sanctuary” laws.

The Justice Department’s basic claim is that three California laws, passed in 2017, limit the ability of state officials and employees to assist the federal government in enforcing immigration policy. Tensions between states like California and Arizona and the federal government over immigration enforcement have spiked in recent years, including under the Obama administration. The latest move by Sessions is a significant escalation in that broader fight.

I reached out to eight legal experts with a simple question: Does the DOJ have a case against California? What rights do the states have over the federal government when it comes to immigration policy? And is this dispute likely headed to the Supreme Court?

Their responses, lightly edited for clarity and style, are below.


Jessica Levinson, law professor, Loyola Law School

The DOJ does have a case against California, and California does have a good defense against the DOJ. The DOJ will argue that there’s a little thing called the Supremacy Clause in the US Constitution, and that when the federal government decides to set a policy, any state policy that directly violates that federal directive is invalid. And the DOJ will argue that it is well within the purview of the federal government to set and enforce our nation’s immigration laws.

California will argue that there’s a little thing called “state sovereignty,” and that it too has power in this area. California will argue that its laws are not in direct conflict with federal immigration law and that the federal government cannot force the state into becoming a local arm of federal law enforcement.

Asha Rangappa, former FBI agent and senior lecturer, Yale University

There is some irony to the DOJ’s sanctuary cities litigation happening alongside a debate about reform of gun laws, as both implicate aspects of federalism, or the relationship between the states and the federal government.

One of the big loopholes in the existing regulatory scheme for guns is that states are not required by federal law to conduct background checks of state criminal records for gun purchasers — their participation is “voluntary.” The same idea is now implicated in the debate over sanctuary cities — namely, whether the federal government can mandate states and localities to comply with federal immigration policy.

Congress arguably has more authority over immigration under the Constitution than it does over gun regulation, which means that states may have an uphill battle arguing that being forced to assist the federal government in implementing its immigration policies violates state sovereignty.

Renato Mariotti, former federal prosecutor, 2007 to 2016

This is a role reversal. During the Obama administration, conservatives argued that immigration was the province of state government, and the Obama administration won a key victory before the Supreme Court in Arizona v. United States. That ruling held that three provisions of Arizona state law creating new criminal laws aimed at undocumented persons violated the Supremacy Clause of the US Constitution, which makes federal laws preeminent over state laws.

Now the Trump Justice Department is trying to use that precedent to invalidate California state laws that afford additional due process protections to undocumented persons. One difference between the Arizona case and this case is that the California laws were written with the Supreme Court’s 2010 decision in Arizona v. United States in mind, and are largely aimed at affording additional due process to undocumented persons and ensuring that California’s resources aren’t being used to further federal aims.

Generally speaking, the 10th Amendment prohibits the federal government from compelling states to enact or administer a federal regulatory program. This case will likely head to the Supreme Court, and it’s difficult to predict what they will do, but I believe California has a better chance of prevailing than Arizona did.

Andrew Wright, law professor, Savannah Law School

To the extent the Trump administration’s argument is that California must devote personnel and expend resources to enforce federal immigration laws, its lawsuit will fail as an unconstitutional violation of federalism.

The American system of federalism divides sovereignty between federal and state governments. The 10th Amendment reflects that unique constitutional structure. As such, the federal government cannot “commandeer” state law enforcement or legislatures to execute a federal regulatory program.

Basically, the federal government is free to incentivize California’s cooperation by means of its spending power, but it cannot conscript Californian officials to become federal immigration enforcement officers.

Stephen Legomsky, law professor, Washington University

The state of California has every right to decide how its state employees spend their work time, and they’re subject only to specific exceptions contained in federal law. Federal law does indeed require state and local law enforcement officers to turn over to Immigration and Customs Enforcement (ICE), upon request, any information they happen to have about an individual’s immigration status.

But no federal or other law requires them to share with ICE a prisoner’s release date or any other personal information. In light of the cruel consequences of the current administration’s scorched-earth immigration enforcement policies, the state of California has both the law and sound public policy on its side.

Peter Margulies, law professor, Roger Williams University

There are weighty interests on both sides of Sessions’s suit against California. The Constitution makes the federal government supreme on matters like immigration, where we need to speak with one voice to other countries — we can’t have 50 different rules on who gets deported.

However, states like California are also sovereign entities, which means they have the power to protect the health and safety of all their residents, including undocumented immigrants.

The DOJ’s main target is a California law that reassures crime victims who happen to be immigrants that cooperation with state law enforcement won’t be a fast track to deportation. The California law allows the state and DOJ to work together to stop criminal gangs; most of it will survive Sessions’s lawsuit.

But the courts will likely strike down another California law that undercuts the feds by forcing employers to tip off workers about immigration raids. While the rhetoric on both sides makes this case seem like a zero-sum game, I think it will turn out to be a split decision.

Ric Simmons, law professor, Ohio State University

The fundamental question of this lawsuit is whether the California statutes infringe on the federal government’s authority to enforce federal immigration laws. Federal authority over immigration law is supreme, as the Supreme Court noted in the 2012 case between the Obama administration and Arizona.

The California laws can be distinguished from the case in Arizona, however, because the California laws do not directly affect federal immigration law — whereas the Arizona laws from 2012 directly affected immigration law by requiring immigrants to carry papers and authorizing jail time for immigrants who worked without legal authorization.

In the upcoming California case, the federal district court will have to decide if the indirect effect of the California laws is sufficient to conflict with the federal government’s supreme authority in the immigration realm. Unfortunately for the state of California, prior courts that have reviewed similar sanctuary laws have rejected these arguments and sided with the federal government.

But the California laws do not target immigrants; they restrict what state law enforcement officers and private companies can do with regard to cooperation with federal immigration authorities. Thus, California has a stronger argument than Arizona did in 2012. California has the right to regulate its own law enforcement officials and companies.

There is no doubt that the California laws impact the federal government’s enforcement of immigration laws (that is their purpose), but that may not be enough to allow federal law to preempt state law.

California can also argue that the federal government is essentially attempting to leverage state resources (state law enforcement officers and local jails) in order to enforce federal law, and the federal government does not have that authority.

Ilya Somin, law professor, George Mason University

Trump and Sessions have suffered a series of well-deserved defeats in their efforts to cut federal grants to sanctuary cities. Sessions’s new lawsuit targeting California’s sanctuary laws is on stronger ground, however. California deserves to prevail on all three issues raised in the case. But there is room for reasonable disagreement on all of them, and courts could easily rule either way.

Sessions is challenging California’s “sanctuary state” legislation that restricts state and local government information-sharing with the federal government on immigration issues. Sessions claims that this law violates a federal law that prevents state and local governments from forbidding their employees to share information on immigration status with federal immigration enforcement officials. This is a somewhat controversial claim, and judges have reached divergent conclusions about the constitutionality of the federal law Sessions is relying on.

The new lawsuit also targets state laws that bar private employers from voluntarily cooperating with ICE raids and that require the state attorney general to inspect any facility in the state where immigrants are detained by federal agents. There is no federal law barring inspections or requiring employers to cooperate with ICE raids any time the feds want to launch one.

But the Trump administration still has a plausible case here because the Supreme Court, in Arizona v. United States, ruled that federal law often negates state law on immigration even if there is no direct conflict. That might be enough to doom both of these state laws. Still, there are important distinctions between Arizona and the California case. The issue could go either way.

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