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Jeff Sessions’s lawsuit against California’s “sanctuary” laws, explained

California tried to make it harder for ICE to round up immigrants. So the federal government is suing the state.

Rev. Billy Graham Lies In Repose In U.S. Capitol Rotunda Erin Schaff-Pool/Getty Images

On Wednesday, Attorney General Jeff Sessions is visiting California to sue it.

The Department of Justice has just filed a lawsuit against the state over three laws it passed in 2017 that limit government officials’ and employers’ ability to help federal immigration agents, and that give California the power to review conditions in facilities where immigrants are being detained by the feds. Sessions, in a Wednesday speech to the California Peace Officers’ Association, a law enforcement union, is giving the message in person.

It’s a huge escalation of the Trump administration’s fight against “sanctuary cities” that limit local-federal cooperation on immigration enforcement. After a year of slow-moving or unsuccessful attempts to block “sanctuary” jurisdictions from getting federal grants, Sessions is moving to stop them from passing laws that limit cooperation to begin with. And he’s starting with a shot across the bow: targeting the bluest state in the union, whose 2017 bills represented a model for progressives to use federalism against the Trump administration’s immigration agenda.

California, like any other “sanctuary” jurisdiction, isn’t stopping Immigration and Customs Enforcement (ICE) agents from being able to arrest, detain, or deport immigrants. In fact, ICE has already responded to the 2017 laws in its own way — by escalating raids in California and claiming that the state’s sanctuary laws force ICE to get more aggressive in its tactics.

Sessions’s lawsuit, legally speaking, is about ensuring that the feds can use any tool in the toolbox of federal immigration enforcement policy, without any restrictions from progressive cities and states. Politically speaking, it’s the next phase in a battle the Trump administration and California are equally enthusiastic about having: an ongoing culture war between progressive politicians who feel a duty to make their immigrant residents feel as safe as possible, and an administration (and its backers) whose stated policy is that no unauthorized immigrant should feel safe.

The lawsuit is mostly a fight to let government employees and business owners cooperate with ICE if they want

The administration’s new lawsuit doesn’t address all of California’s restrictions on cooperation — including some of the “sanctuary” policies that Sessions and other Trump administration officials have complained the most about (like limits on when local jail officials can agree to hold unauthorized immigrants for 48 hours after they’d otherwise be released so federal agents can pick them up).

Instead, it aims at pieces of three different laws California passed last year: one that strictly limits law enforcement cooperation with ICE, one restricting what employers can do when ICE engages in workplace raids, and one about reviews of immigration detention facilities.

Here’s the rundown:

SB 54 (California Values Act): the “sanctuary” law. The Trump administration is suing to allow local law enforcement officials in California to do two things that SB 54 now prevents them from doing: 1) tell federal agents when an immigrant will be released from jail or prison, or give them other “nonpublic” personal information other than the immigrant’s immigration status; and 2) transfer immigrants directly into federal custody from local jails without a warrant from a judge for their arrest (though local officials are allowed to do this if an immigrant has committed certain serious crimes).

The Trump administration argues that the restrictions on what local officials can tell federal ones about a detained immigrant violate federal law — specifically, a provision that bars local and state governments from telling their officials not to share information about “the immigration status ... of any individual.” This is the same provision the Trump administration has been using in its attempts to block “sanctuary” jurisdictions from getting federal grants.

California argues that sharing information about when someone will be released from jail or prison is different from sharing information about their “immigration status” itself, so it’s legal for the state to put restrictions on the former. That argument has been upheld by a federal judge in the state — though, notably, not in the same district where the Justice Department is suing.

(Ironically, the ruling that refusing to share release dates didn’t violate federal law came in a civil lawsuit filed against the city of San Francisco by the parents of Kate Steinle, whose killing has become a cause célèbre for immigration hawks including President Trump himself.)

The Justice Department is also arguing that California is restricting federal immigration enforcement by requiring a warrant from a judge to take an immigrant into custody, claiming that federal immigration law was designed to use civil “warrants” from the executive branch (since being in the US without papers is a civil offense, and deportation is technically a civil punishment, rather than criminal).

AB 103: the detention review law. The DOJ is suing to strike down a law that requires the California attorney general to review any facility where immigrants are being detained by federal agents while waiting for an immigration court date or their deportation (or where unaccompanied minors are being held while waiting to be placed with a relative).

The lawsuit argues that where immigrants are detained is a “law-enforcement decision” and California is improperly interfering with it; it also complains that California isn’t placing these restrictions on any other local or federal agency and is targeting immigration enforcement.

AB 450: the workplace-raid law. Just like the DOJ is suing to let law enforcement cooperate more broadly with federal agents with its challenge to SB 54, it’s suing to let employers cooperate with federal agents during workplace raids or audits. The feds are suing to strike down provisions that prevent employers from letting ICE agents access “nonpublic areas” of the workplace during raids or giving ICE agents access to employee records without a judicial warrant. (Though ICE agents would still be allowed to look over an employer’s I-9 files, the form to verify an employee’s ability to work in the US legally.)

And it’s suing to stop employers from having to notify their employees within 72 hours of getting a notice of inspection of I-9 files from ICE and notify them again within 72 hours of getting the results if the employee has been flagged in the system as working illegally.

The DOJ argues that these restrictions “have the purpose and effect of interfering with the enforcement of the [federal] prohibition on working without authorization.”

This is basically the heart of the lawsuit: that California passed laws that are designed to stop the federal government from enforcing its laws, and that’s not permissible under the Supremacy Clause of the US Constitution. (In a subplot, the lawsuit cites the Supreme Court’s decision in Arizona v. US in 2012, which struck down parts of a state immigration enforcement law passed by Republicans who thought the Obama administration was shirking its duty on immigration.)

In the federal government’s view, “California has no lawful interest in assisting removable aliens to evade federal law enforcement.” But California, of course, argues it does: that protecting the safety and well-being of California residents means forcing ICE to meet higher standards of due process before engaging in actions that can affect not only unauthorized immigrants but legal immigrants and US citizens. And this is where the real divide lies.

California’s laws haven’t kept out ICE. They’ve just made ICE officials angrier.

The term “sanctuary” gives the totally misleading impression that cities and states can stop ICE from entering, or from arresting immigrants. They can’t. The laws that immigration hawks have traditionally labeled “sanctuary” policies — a label that, in the wake of the 2016 election, some progressives and Democrats have embraced — are designed to make it harder for the federal government to use local governments as leverage in immigration enforcement.

So when those laws pass, ICE has to do things the hard way: tracking down immigrants after they’re released from jail, for example, instead of just picking them up directly.

That sort of ICE activity is more visible — and often more disruptive to immigrants’ daily lives. When the Trump administration has been criticized for its aggressive immigration tactics, like arresting immigrants in courthouses or in their driveways, it has blamed “sanctuary cities” for forcing them to.

But the Trump administration has also made a point to hype enforcement in “sanctuary” jurisdictions as a way to send a message that immigrants are not safe there. So even as the Justice Department sues California for making it too hard to enforce immigration law, ICE is as visible in the state as ever.

The workplace-raids law the DOJ is suing over didn’t stop ICE from raiding several 7-Eleven franchises in California in January, armed with notices to inspect their I-9 forms. Nor did California’s laws stop ICE from arresting more than 150 immigrants in a massive “sweep” in Northern California in February, including some who allege they were approached at random in public by an ICE agent and asked for their papers (something ICE generally denies it does).

The Trump administration has vocally criticized California officials for trying to impede ICE — it was furious with Oakland Mayor Libby Schaaf for alerting the public that the February sweep was coming, for example. But it’s important to understand that the lawsuit isn’t really about ICE’s abilities, but rather about making it easier for the agency to do its job — or, to put it another way, it’s about how many tools ICE has in its immigration enforcement toolbox.

And it’s also, just like the stepped-up raids, another way to remind immigrants that no matter who calls California a “sanctuary,” it can’t really protect immigrants from deportation.

This is a fight both sides are eager to have

Sessions isn’t just going to Sacramento at random. He’s announcing the lawsuit at the convention of the California Peace Officers’ Association — which lobbied against SB 54 and which, according to its executive director, invited Sessions to provide some “clarity” about how local police could work with federal agents in general in the wake of the law.

What Sessions is giving them instead is a promise to fight for them against the local and state politicians who are trying to keep them from doing their jobs: “The Department of Justice and the Trump administration are going to fight these unjust, unfair, and unconstitutional policies that have been imposed on you,” he’s expected to say Wednesday. “I believe that we are going to win.”

In reality, law enforcement agents and officials in California (like the rest of America) have been divided on local cooperation with immigration enforcement: Some of them oppose laws like California’s because they hinder officers’ power to decide how to do their jobs, while others want to make sure immigrants aren’t scared out of reporting crimes by worrying local police will turn them over to ICE.

But picking a fight with Democratic politicians — especially in liberal-caricature California — on behalf of cops is the best possible frame for the Trump administration politically. Ever since the presidential primary, Trump has gotten leverage out of attacking “sanctuary cities” for harboring criminals. It’s allowed him to use his favorite theme — that immigrants are criminal and dangerous — while attacking his political opponents.

The legal prospects of the new lawsuit aren’t very good in the short term. Even if the DOJ prevails in the district court, it’ll have to go through the liberal (and presidentially antagonized) Ninth Circuit Court of Appeals. Politically, though, it’s less important that the Trump administration wins this fight than that it’s picking it at all — it’s reminding its base who the good guys and bad guys are.

Of course, that’s also true for the California government — it’s just that the “good guy” and “bad guy” labels are reversed. California has all but courted a lawsuit from the Trump administration. Attorney General Xavier Becerra left a promising career in the House of Representatives to lead the legal resistance on the West Coast.

Officials have barely bothered to conceal their glee at the news that they’re being sued. “BRING IT ON!” wrote Kevin de León (the state legislator who wrote SB 54) in a Facebook post. Gov. Jerry Brown tweeted at the attorney general: “Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!”

This isn’t just about the electoral optics for California Democrats in a majority-minority state, in a midterm that could finally push out some of the state’s remaining congressional Republicans. It’s also about the message being sent to immigrants — for Democrats and the administration alike.

The fight over “sanctuary” policies is ultimately a fight over whether fear is a useful tool in immigration enforcement or an evil that can poison whole communities. The official position of the Trump administration is that any unauthorized immigrant in the US should be “looking over [her] shoulder” and worried that ICE will come after her at any time. The biggest change to policy under Trump hasn’t been the scope of deportations or even of arrests — it’s been the aggressive messaging that anyone could be next.

Local and state officials who see unauthorized immigrants as part of their own communities, and who are concerned about the effects that targeting unauthorized immigrants will have on their legal immigrant neighbors and US citizen children, are trying to combat that fear. Laws that force ICE to put more effort into arresting and detaining immigrants are one way to do that. Simply sending the message that some politicians are looking out for immigrants and fighting for them is another — probably not as effective, but something nonetheless.

Fighting in court over California’s laws allows both sides to send the message they want. But in the meantime, ICE will keep working to make sure that its presence is felt in the state, “sanctuary” or no.

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