Sanctuary Silliness

Why Jeff Sessions’ outlandish new lawsuit against California is likely doomed.

Attorney General Jeff Sessions speaks at a White House Opioid Summit March 1 in Washington.
Attorney General Jeff Sessions speaks at a White House Opioid Summit March 1 in Washington.
Photo illustration by Slate. Photo by Win McNamee/Getty Images.

Attorney General Jeff Sessions filed a lawsuit on Wednesday intended to make you think that he’s suing California to strip the state of its major “sanctuary” policies. He’s not. Sessions didn’t have the guts to go after California’s principal sanctuary law because he would undoubtedly lose. Instead, he has targeted three secondary policies that make up a small portion of the state’s broader immigration regime. Even if Sessions succeeded in overturning all three laws, California would remain a sanctuary state. But he probably won’t succeed in killing any of them. Perhaps this lawsuit is just another desperate attempt to win back President Donald Trump’s affections.

Let’s start with what Sessions isn’t challenging: California’s ban on immigration holds.
Immigration and Customs Enforcement issues these holds, also known as ICE detainers, when a local enforcement agency is about to release an undocumented detainee. ICE asks the agency to keep the detainee for an extra 48 hours after his release date, excluding weekends and holidays, so it can transfer him into federal custody. The arrangement is entirely voluntary.

In 2017, California barred its state and local law enforcement from honoring ICE detainers. That policy, alone, makes it a “sanctuary state.” There are several reasons why California banned these detainers, but the main reason is that they may well be illegal. Living in the United States without proper documentation is a civil offense, not a criminal one. So ICE is asking local agencies to detain immigrants for days after their release date with no probable cause of criminal activity. Several federal courts have already found that honoring ICE detainers violates the Fourth Amendment. California has decided it wants no part in this dubious practice.

Even if ICE detainers were somehow lawful, Sessions could not constitutionally compel California to honor them. That’s because the 10th Amendment forbids the federal government from “commandeering” state officials to implement federal law. In April 2017, a federal judge ruled that, under this principle, the Trump administration could not legally withhold funding from jurisdictions that ignore ICE detainers. If the administration can’t even yank money from jurisdictions that refuse to work with ICE, it certainly can’t compel them to cooperate by court order.

So: What California policies did Sessions challenge? The attorney general took aim at three measures that, he alleges, frustrate the enforcement of federal immigration law and are thus void under the Constitution’s Supremacy Clause. That clause pre-empts state laws that conflict with federal law. But it isn’t at all clear that any of the three laws in question create such a conflict. Let’s take a closer at each one.

First, Sessions targeted a rule that bars California law enforcement agencies from sharing information about undocumented immigrants, including their release date, with the federal government. Unfortunately for him, the 10th Amendment probably insulates this policy from his attack. Sessions is essentially arguing that the federal government can commandeer a state by requiring it to let agencies turn over data pertaining to state residents. Again, the Supreme Court has ruled that the feds can’t commandeer a state’s police powers. It’s hard to see how Sessions could win this fight.

Second, Sessions challenged a law designed to protect immigrants from workplace raids. Under the act, federal immigration officers may not access “any nonpublic areas of a place of labor” or “the employer’s employee records” without a subpoena or judicial warrant. California passed this law for several reasons, chief among them a desire to protect employees from harassment by ICE. But Mark Fleming, associate director of litigation at the National Immigrant Justice Center, noted that the legislature had another concern: There’s a long history of employers effectively blackmailing undocumented employers over their immigration status, using the information to thwart union drives and exploit workers. California’s law makes such blackmail more difficult by forbidding employers from giving voluntary consent to an immigration raid, instead requiring judicial oversight to ensure due process.

Sessions claims that these protections create an “obstacle” to the “objectives of Congress” in authorizing these raids. But there’s a problem with that theory: The California measures explicitly permit any action “required by federal law.” How can a state statute impede federal law enforcement if the statute itself allows anything that federal law requires? As Ian Millhiser points out at ThinkProgress, this “objectives of Congress” doctrine is so hazy that nobody’s quite sure what counts as an “obstacle.” We do know, however, that Justice Clarence Thomas dislikes the doctrine, while the court’s liberals seem hesitant to apply it when a state pursues legitimate interests that aren’t explicitly reserved to the federal government. Sessions’ argument here isn’t frivolous. But because no federal statute directly conflicts with the California acts, it’s doubtful that a majority of the court would strike them down on that basis.

Third, and most bizarrely, Sessions challenged an act that allows the California attorney general to inspect immigration detention facilities within the state. These facilities are notorious for their poor conditions: California detainees have been sexually abused and denied medical treatment, while a handful have died from lack of proper care. Yet ICE has been destroying its record of immigrant abuse. The California law seeks to restore transparency by directing the attorney general to tell the legislature and the governor about what he sees in the facilities—including the amount of “due process provided.”

What, exactly, is wrong with that? According to Sessions, these inspections constitute “an improper, significant intrusion into federal enforcement of the immigration laws.” This claim is already weak, since the attorney general’s inspections would do nothing to impede the enforcement of these laws. It is made weaker by the fact that 9 of California’s 10 detention facilities are either run by local law enforcement or contracted out by the city. Some cities rent out beds in the local jail to ICE detainees; others contract with private prisons to house these immigrants. Only one facility, the Otay Mesa Detention Center, is under contract with the federal government exclusively.

Sessions might be able to prevent the California attorney general from inspecting Otay Mesa because it is exclusively federal. But he almost certainly cannot prevent the state from inspecting its own detention facilities. California does not relinquish all authority over its jails and prisons when it allows the feds to house undocumented immigrants in them. To claim otherwise would be to reject the notion of state sovereignty altogether.

And that is what’s so galling about this lawsuit: Yet again, Jeff Sessions, a self-proclaimed defender of states’ rights, is seeking to undermine states’ ability to conduct their own affairs. He is intruding upon California’s police powers and undermining its protection of civil rights because he dislikes the state’s laws. Sessions may wish that every state would accede to his policy agenda. But he can’t use the Constitution to make them obey his commands.

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Mark Joseph Stern covers courts and the law for Slate.