Ninth Circuit Leans Toward Upholding California’s Sanctuary Law

SAN FRANCISCO (CN) - Biting remarks from three Ninth Circuit judges on Wednesday appeared to dash the Trump administration's hopes of reversing a judge's decision to uphold a California law that limits cooperation with federal immigration agents.

"Are you entitled to the aid of state governments?" U.S. Circuit Judge Andrew Hurwitz asked a Justice Department lawyer.

Huwitz and two of his colleagues heard arguments on the Justice Department's appeal of a lower court's July 2018 ruling upholding the bulk of three California laws, including its "Sanctuary State" law.

Justice Department lawyer Daniel Tenny argued that federal law requires immigration agents to apprehend undocumented immigrants when state and local jails release them. He insisted that California's Senate Bill 54, which only permits local and state jails to hand over immigrants that commit certain violent crimes and felonies, interferes with that objective.

But Hurwitz countered that the state law does not prevent federal agents from detaining immigrants when they are released from jail. It simply forbids state and local officials from aiding in that task.

"There's nothing in this statute that prevents them from taking custody," Hurwitz said.

U.S. Circuit Judges Paul Watford and Milan Smith Jr. went further in suggesting that even if Congress wanted to, the 10^th Amendment bars the federal government from compelling state and local governments to enforce federal laws.

Both circuit judges noted that Congress could have empowered federal agents to take custody of undocumented immigrants before they served jail time or faced charges for state and local crimes. Tenny replied that Congress did not anticipate a lack of cooperation from state and local governments when it passed the law.

"If it makes it harder for them to enforce the law, that's an obstacle," Tenny insisted. "That's the definition of an obstacle."

While that line of reasoning appeared to hold little sway with the judges, the panel seemed more open to complaints about another California law that calls for enhanced inspections of state-owned jails that house immigrant detainees.

Assembly Bill 103 requires the California attorney general to review state-owned immigration detention centers for conditions of confinement, circumstances of apprehensions and transfers, standards of care, and due process provided to detainees.

Hurwitz questioned how the state government can review issues like due process and circumstances of apprehension for those in federal custody.

"I'm having trouble understanding why conditions of apprehension are any business of California," Hurwitz said, adding the law also appears to place a greater burden on the federal government's detention centers compared to other state jails.

California Justice Department lawyer Aimee Feinberg insisted that the state can impose different review requirements on detention centers with federal contracts, as long as they are not out of proportion compared to requirements for state and local jails.

But on the third challenged law, the circuit judges once more seemed inclined to side with California. The statute, AB 450, requires private employers to notify workers when federal agents ask to inspect their employment records.

Tenny argued the law forces employers to tip off those who committed fraud to gain employment and help them to evade justice.

But when Hurwitz asked if any law makes the federal government's inspection of job records confidential, Tenny acknowledged that no such law exists.

U.S. District Judge John Mendez in Sacramento previously struck down another part of that law, which forbade employers from cooperating with Immigration and Customs Enforcement or letting immigration agents raid their jobsites without a warrant.

The panel did not indicate when it expects to issue an opinion.

Hurwitz and Watford were appointed by Barack Obama in 2012. Smith was appointed by George W. Bush in 2006.

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