SAN FRANCISCO (CN) – To survive a legal challenge by the U.S. Department of Justice, California must prove that its sanctuary policies don’t interfere with the federal government’s ability to enforce immigration laws, experts say.
“California will make a case that they are not standing in the way,” said John Dinan, a Wake Forest University professor who specializes in federalism. “The Justice Department will stress the degree to which this stands in the way of federal immigration law.”
In a lawsuit filed Tuesday, the Justice Department targeted three California laws that aim to shield immigrants from the Trump Administration’s widening deportation dragnet. The suit was assigned to U.S. District Judge John Mendez in Sacramento, a former federal prosecutor appointed by President George W. Bush in 2008.
The three challenged statutes were signed into law by Gov. Jerry Brown in June and October last year.
AB 103 empowers the state to inspect immigration detention centers and seek records from Immigration and Customs Enforcement (ICE) to investigate “due process” issues for immigrant detainees.
AB 450 bars private employers from voluntarily sharing information with ICE and requires that they give 72 hours’ notice to employees before letting ICE inspect workplaces.
SB 54 bars local law enforcement agencies from turning jailed immigrants over to ICE or sharing their release dates and addresses unless they were convicted of certain violent or serious crimes.
U.S. Attorney General Jeff Sessions says these laws impede the federal government’s enforcement of federal laws and force ICE agents to apprehend “criminal aliens” in more dangerous situations, putting their safety at risk.
“We are simply asking California and other sanctuary jurisdictions to stop actively obstructing federal law enforcement,” Sessions said during a speech in Sacramento on Wednesday.
The Justice Department is relying on a 2012 Supreme Court decision that found Arizona went too far in passing laws that penalized undocumented immigrants. In the 5-3 ruling, the Supreme Court found Arizona’s laws were pre-empted by federal law.
While both cases involve state laws on immigration, one legal expert says California’s laws are so different in scope and aim that they should not suffer the same fate as Arizona’s laws.
“There’s a big difference between laws that are pro-immigrant versus laws that are anti-immigrant when it comes to the pre-emption argument,” said Bill Hing, director of the Immigration and Deportation Defense Clinic at the University of San Francisco.
Arizona sought to enforce immigration, an activity that courts have found only Congress has the power to regulate, Hing said.
“Here, what the state is trying to do is not regulate immigration,” Hing said. “We’re passing state laws for public safety reasons.”
Proponents of sanctuary policies say they make communities safer because immigrants are more willing to cooperate with local police and report crimes when they don’t fear deportation.
But opponents see things differently. They say California protects “criminal aliens” and makes it a crime to cooperate with federal law enforcement.
Under AB 450, private employers who turn employment records over to ICE without a warrant face criminal fines of $2,000 to $10,000.
“Just imagine if a state passed a law forbidding employers from cooperating with OSHA in ensuring workplace safety. Or the EPA, looking for a polluter,” Sessions said on Wednesday. “That would obviously be absurd. But it would be no different in principle from this new law enacted by California.”
Hing argued the state has the right to pass laws that protect employees’ rights in the workplace.
Under SB 54, local sheriffs can only transfer an undocumented immigrant to ICE custody if that person was convicted of certain serious crimes or felonies.
Harmeet Dhillon, a San Francisco attorney who serves on the leadership team for the Republican National Committee in California, says California’s list of crimes doesn’t match up with crimes the federal government deems deportable.
“California says we’re going to superimpose our own judgment on who should be deported,” Dhillon said.
Dhillon believes most sheriffs in California want to work with ICE to get “dangerous aliens” off the street when they get out of jail. She says California imposes burdensome recordkeeping requirements on sheriffs that choose to share information with ICE.
“It’s imposing dollar costs on people for complying with federal law,” she said. “I would view that as an unconstitutional burden.”
Still, no federal law requires local law enforcement to help ICE detain or deport immigrants. That’s one reason why Hing believes that statute will withstand judicial scrutiny.
“Under the 10th Amendment, you cannot commandeer local law enforcement to do the work for you,” Hing said.
Another state law empowers the California Attorney General to inspect federal detention centers and seek records from ICE to investigate the treatment of detainees.
Dhillon considers this “the most egregious” of the state’s sanctuary policies.
“It’s never the case in government where the inferior authority gets to impose burdens on the superior one,” she said.
But Hing says that law merely seeks to impose the same standards on immigration detention centers that other jails in California must meet.
Even if the sanctuary policies don’t overtly conflict with federal law, the Justice Department says they should be abolished if they frustrate the spirit and intent of laws passed by Congress.
Determining whether California obstructs the spirit of such laws is a question open to extreme interpretation, Dinan said.
“Different judges with different backgrounds could resolve these questions in different ways,” he said.
The first round will be decided by Judge Mendez in Sacramento. He must determine what Congress intended when it passed immigration laws, and if California’s sanctuary policies interfere with those intended goals.
Saira Hussain, a staff attorney with the Asian Law Caucus in San Francisco, predicts this will be a long and protracted legal battle that could extend beyond the 2020 presidential election.
Hussain believes California’s sanctuary policies are needed to “ensure immigrants are getting the full protection of due process and that our local law enforcement is not acting as an arm of ICE.”
No matter how this epic legal drama ends, experts say it is likely headed to the Supreme Court, where a ruling could have far-reaching impacts on state and federal power beyond immigration.
“Whenever you get a federalism case of this kind, and you get some resolution on it, it almost inevitably has implications for other federalism cases in other areas,” Dinan said.