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March 13, 2018 at 2:10 PM March 13, 2018 – Last week, Attorney General Jeff Sessions announced the latest move in this administration’s increasingly desperate attempts to bully states and localities into colluding with its draconian detention and deportation agenda. Following a brief aside to blame all immigrants for violent crime, homicides, and opioid overdose deaths, he told a meeting of the California Peace Officers’ Association that the Justice Department had just filed a major lawsuit against the state of California.
The lawsuit challenges three state laws passed and signed into law in 2017: AB 450, the Immigrant Worker Protection Act; AB 103, a detention statute that was part of an omnibus bill; and SB 54, the California Values Act. The DOJ claims that these three laws “have the purpose and effect of making it more difficult for federal immigration officers to carry out their responsibilities in California.” In fact, these laws simply ensure that state actors comply with the U.S. Constitution and that local law enforcement’s limited resources are not co-opted for federal immigration enforcement purposes except in certain circumstances.
AB 103 expands state oversight of California’s local detention facilities when they hold people under contracts with ICE because federal oversight of the ICE detention system is woefully inadequate. And AB 450 reinforces the Fourth Amendment’s warrant requirement by requiring employers to see a judicial warrant from ICE before they allow ICE to enter a non-public part of a workplace. The Sessions’ lawsuit details the federal government’s objections to these attempts to limit the harm caused by the deportation force that President Trump has unleashed.
But Sessions’ challenge to SB 54 really gets to the heart of this administration’s hostility to jurisdictions that choose to prioritize community safety by disentangling their local criminal law enforcement activities from federal immigration enforcement. SB 54 prohibits local law enforcement in California from using their already limited resources to facilitate the enforcement of federal immigration law, including by:
- inquiring into someone’s immigration status
- jailing an individual past their release date based on an ICE detainer request
- arresting someone based on a civil immigration warrant
- providing office space in local jails exclusively for immigration authorities
- using federal immigration authorities as interpreters for law enforcement matters
- entering into 287(g) agreements to deputize local law enforcement as federal immigration agents
- participating in joint task forces whose primary purpose is immigration enforcement
- providing non-public personal information about an individual, including their home or work address, to immigration authorities
- notifying immigration authorities of an individual’s release date, with a list of exceptions
- transferring an individual into the custody of immigration authorities without a judicial warrant, but with a list of exceptions.
Though SB 54’s requirements are extensive, the Sessions lawsuit challenges only the final three provisions listed above. It claims that they violate the Supremacy Clause by obstructing the federal government’s ability to enforce immigration laws and by discriminating against the federal government.The lawsuit’s challenge to these SB 54 provisions primarily rests on its claim that, by prohibiting the sharing of release dates and personal information, SB 54 violates federal law. But the law only prohibits state policies that restrict the sharing of immigration status and citizenship information — not release dates, addresses, or any other personal information. In fact, as one federal court recently put it, “[n]othing in 8 U.S.C. § 1373(a) addresses information concerning an inmate’s release date.” And another federal court recently held that Philadelphia’s similar policies — which restrict the sharing of people’s addresses and release dates — do not violate federal law.
The government’s other objection to SB 54 is the very reason why SB 54 is constitutional. It argues that the law harms the federal government because it “requires ICE to expend greater time and recourses” to carry out its arrests. But the fact that ICE will have to work harder and expend more of its own resources if states and localities do not assist them with their every request underscores the legality of California’s position.
Under the 10th Amendment, the federal government cannot force states or localities to participate in a federal program. The Supreme Court announced that principle in 1997, in Printz v. United States, where it ruled that the federal government could not command states to conduct background checks on gun purchasers. The same principle applies here: The federal government cannot require states to participate in its deportation program. Indeed, no federal law mandates that states or localities use their own resources to aid federal immigration agents in locating and arresting people.
The federal government is furious at California. But its new lawsuit ignores longstanding Supreme Court precedent. The state’s decision to opt out of participation in Trump’s deportation agenda is sensible and legal. Lawmakers in the rest of the country who similarly adopt pro-immigrant policies should rest easy — Attorney General Sessions is on weak legal ground.
Ruthie Epstein, ACLU, National Political Advocacy Department
& Jennie Pasquarella, Senior Staff Attorney, ACLU of Southern California