SACRAMENTO (Oct. 5, 2017) – Yesterday, California Gov. Jerry Brown signed a bill to withdraw state resources from the enforcement of most federal immigration laws. Once in effect on Jan. 1, 2018, the new law will likely have the effect of further nullifying those federal acts in practice.
Introduced by Sen. President Kevin de Leon and 11 co-sponsors, Senate Bill 54 (SB54), the “California Values Act,” prohibits local law enforcement from using any resources to arrest, detain or hold people on behalf of immigration federal authorities in most situations.
After talks between Brown and de Leon, amendments to the bill made late in the process will weaken it from its original text by allowing federal immigration authorities to keep working with state corrections officials and to continue entering county jails to question immigrants. The law will also permit police and sheriffs to share information and transfer people to immigration authorities if they have been convicted of one or more crimes from a list of 800 outlined in a previous law, the California Trust Act.
And under the amended bill, law enforcement officers will be able to notify ICE if they come into contact with a person who previously has been deported and has a violent felony record.
The compromise helped draw support for the bill from Assembly Speaker Anthony Rendon (D-Paramount), and moved the California Police Chiefs Assn.’s official position from opposed to neutral. The California Sheriffs Assn. remained opposed.
SB54 was originally passed by a 27-12 vote in April. After removing some provisions of the proposal, the Assembly passed the bill by a vote of 51-26 last month, the deadline for the Assembly to pass Senate bills for this year. This sent it back to the Senate to either approve the Assembly amendments or reject them and continue the process in early 2018. The Senate took the measure up on the following day and gave it a final approval with the Assembly amendments by a vote of 27-11.
While the law will not allow state agencies to directly interfere with federal immigration enforcement, it will leave the enforcement of federal immigration law to the federal government in most situations. This would likely make it extremely difficult for the federal government to enforce federal immigration law in California.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
On immigration, federal resources are even more stretched. As noted in my column in The Hill:
As the U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) notes on its website, the first and foremost factor impacting its enforcement capability is “the level of cooperation from state and local law enforcement partners.”
With just over 5,700 agents nationwide, ERO reported removal of “240,255 aliens in FY 2016.” In spite of the supposedly high number of sanctuary cities nationwide, this number actually represented an uptick from 2015 due partly to what ERO called “increased state and local cooperation.”
At this rate, removing anywhere close to the at least 11 million unauthorized immigrants in the country right now seems impossible.
Simply put, partnerships don’t work too well when half the team quits. And in this case, when most of the team stops participating.
Provisions withdrawing state and local enforcement of federal law in SB54 rest on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program.
The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
Even in the face of this, some media reports and public commentators have speculated that a new executive order from Pres. Trump would strip all federal funding from any such “sanctuary jurisdictions.” But a full reading of the order reveals this to be extremely unlikely. Also noted in The Hill:
Sec. 9 of the Order clarifies that “sanctuary jurisdictions” are those that “willfully refuse to comply with 8 U.S.C. 1373.” The administration intends to withhold Federal grants from those jurisdictions, “except as deemed necessary for law enforcement purposes,” and from any that have a policy that “prevents or hinders the enforcement of Federal law.”
In fact, the EO is extremely narrow in scope, and the many reports of cities like Boston and Los Angeles being under threat of losing millions of dollars are simply wrong.
8 U.S.C. 1373 bans state and local policies that prohibit the sharing of information with the federal government about the immigration status of an individual.
Some prominent constitutional scholars, including Ilya Somin, argue that this federal act is also unconstitutional and represents an illegal commandeering of state resources. However, SB54 avoids confronting it directly by simply banning state and local officials from “Inquiring into or collecting information about an individual’s immigration status.”
In short, if they don’t ask about immigration status, they cannot violate 8 U.S.C. 1373’s ban on withholding immigration status with the federal government.
The bill goes into effect on Jan. 1, 2018.