Attorney General Jeff Sessions is scheduled to speak in Sacramento on Wednesday, and is expected to address the suit his Justice Department just filed in federal court seeking an injunction against three California laws that impede the federal government’s enforcement U.S. immigration law. (See here as well.)
The suit was filed in the U.S. Eastern District of California late on Tuesday 6 March 2018. This is a major counter-volley in what could either be a very big fight, or the rapid popping of a bubble. It will depend on what California does.
It really doesn’t look from here like California has a leg to stand on. Regardless of what the lower courts do, it seems extremely unlikely that the Supreme Court would find for California on this matter. The DOJ position that the three California laws it is suing over impede federal enforcement is hard to dispute, and the weight of precedent regarding the federal government’s unique primacy in making and enforcing immigration law is unquestioned.
Given the expected character of the Supreme Court over the next 18 months, when this case would probably be heard, it seems like a waste of time for California to make this stand. In fact, it seems like more than a waste of time: it looks counterproductive. Having SCOTUS reaffirm precedent and void the California laws would simply bolster the federal position.
But we’ll see where it goes. The quick read on the laws in question is as follows, from the DOJ filing document:
The first statute, the “Immigrant Worker Protection Act,” Assembly Bill 450 (“AB 450”), prohibits private employers in California from voluntarily cooperating with federal officials who seek information relevant to immigration enforcement that occurs in places of employment. …
The second statute, Assembly Bill 103 (“AB 103”), creates an inspection and review scheme that requires the Attorney General of California to investigate the immigration enforcement efforts of federal agents. …
The third statute, Senate Bill 54 (“SB 54”), which includes the “California Values Act,” limits the ability of state and local law enforcement officers to provide the United States with basic information about individuals who are in their custody and are subject to federal immigration custody, or to transfer such individuals to federal immigration custody.
DOJ summarizes the unlawful effect these statutes produce:
The provisions of state law at issue have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California. The Supremacy Clause does not allow California to obstruct the United States’ ability to enforce laws that Congress has enacted or to take actions entrusted to it by the Constitution. Accordingly, the provisions at issue here are invalid.
There may be some arguable question as to how much active cooperation can be compelled from state and local law enforcement to assist federal agents in administering immigration law. The third law (the California Values Act) may get the most debate, assuming California goes forward with a robust defense of this suit.
But whatever a radical-left jurist on a lower court may write, it looks extraordinarily unlikely that the Supreme Court would fail to agree with DOJ on the principles here, or the letter of the DOJ argument regarding the first two laws. To disagree, the Supremes would basically have to wipe the slate on nearly 140 years of precedent on immigration law cases. (There’s a bit more discussion along these lines at last week’s post on the Oakland mayor.)
Again, we’ll see where this goes. If California pushes this hard, we will have to seriously wonder what the ruling Democrats in the state have in mind. There will be time enough to develop that thought when the state sends a clear signal of its intentions.
For what it’s worth, I’ve never assessed Jerry Brown to be that big a radical. His instincts tend to be more conventional (although far from centrist), emphasizing bureaucratized progressivism rather than social deconstruction or barn burning. I’m not convinced he would have the appetite for lobbing fireballs at Washington, especially this late in his final term.
But all the California laws in question happened on his watch, and he hasn’t acted as a brake on their excesses.
Ultimately, pushing this line of state resistance against the federal government’s legitimate, recognized primacy in a policy area will be a defining moment for the Democrats. Their whole party is in at least as much disarray as the GOP, if not more; the California party’s refusal in February to endorse Dianne Feinstein – a sure winner in her 2018 race to keep her U.S. Senate seat – is a remarkable indicator of the flux the party is in. There’s a more-radical wing that appears to have in mind positions and even operational moves that would burn a lot of barns. And Hillary Clinton left the national party broke and groping for direction. As much turmoil as the GOP is in, the Democrats may be even riper for a hostile takeover — by whoever comes in with money for 2018.
Which Democrats will end up in control of the party, and of the organs of government held by the Democrats in California? I don’t think we know that yet. My bet on Jerry Brown would be that he’d look for a way to slow-roll the federal suit and not have to make epic decisions before he departs office.
I don’t doubt the existence of a small but well-funded and organized group of radicals (on the Antifa model) who would envision trying to push this particular immigration dispute to a “kinetic” level; e.g., with disruptive street violence and harassment of the middle class. I don’t think, however, that state Democratic leaders like Attorney General Xavier Becerra, or gubernatorial candidates Gavin Newsom (currently the lieutenant governor) or Antonio Villaraigosa, former mayor of Los Angeles, would spearhead such a campaign from their political perches.
But it’s early days to try to assess all that. From where we start, I don’t think we know where this one goes. That’s what makes it a defining prospect for the Democrats and the future of progressivism – and potentially a destabilizing factor for the whole country.