(Bloomberg) -- California’s courtroom record against the Trump administration has been near perfect. That may change as the Justice Department seeks to show that the state’s sanctuary laws are at odds with U.S. statues, violating the supremacy of federal law.
The latest court battle, pitting the unofficial nexus of the Trump resistance against the president, is over three laws signed by Governor Jerry Brown in the past year that effectively prohibit employers and local police from cooperating with Immigration and Customs Enforcement agents and authorize the state attorney general to inspect privately owned federal detention centers.
U.S. Attorney General Jeff Sessions sued the state in March over the “extreme” laws that he says forced the Justice Department to take legal action. At a hearing Wednesday, the agency will argue that the statues shouldn’t be enforced while the underlying lawsuit proceeds. Central to Sessions’ arguments will be the U.S. Constitution’s Supremacy Clause, which prohibits states from enforcing their own laws in conflict with federal statute.
“Enforcement of these provisions disrupts the constitutional order by undermining the United States’ control over the enforcement of the immigration laws and regulation of immigration policy,” the Justice Department said in court filings.
The arguments will take place in Sacramento as Trump faces bipartisan criticism for his “zero tolerance” policy of separating immigrant children from parents seeking asylum or crossing the U.S. border illegally. The state legislature is asking Governor Brown to recall 400 National Guard members from the Mexican border to protest the practice of separating families.
To date, California Attorney General Xavier Becerra has fared well in district court against the president’s executive orders to withhold funds from sanctuary jurisdictions, enforce iterations of a travel ban and end the so-called Dreamer program for children of undocumented immigrants. This time, the U.S. is attacking the state for overly aggressive lawmaking. Convincing federal Judge John Mendez, a George W. Bush appointee, that all three mandates should survive means proving its laws don’t conflict with federal law. That could be tricky.
“I think Trump is the worst president we’ve ever had, but even I think they have some good arguments in this one,” said Allan Ides, law professor at Loyola Law School in Los Angeles where he specializes in constitutional law. “There is a classic situation where it’s physically impossible for employers to comply with both the demands of ICE and state law.”
California passed the first of the three disputed laws in June 2017, authorizing Becerra to conduct reviews of California detention facilities “in response to growing concern over egregious conditions.” The Trump administration will argue that California can investigate municipal, county and state facilities all it wants, but has no jurisdiction to investigate government-owned federal facilities. Five months after the law was signed, federal officials allowed Becerra to inspect five detention facilities, according to court filings.
Two more laws followed in October, including the Immigrant Worker Protection Act and the California Values Act, which prohibit both private employers and local law enforcement from cooperating with federal immigration agents. The laws conflict with statutes passed by Congress, including the 1986 Immigration Reform and Control Act, passed to discourage undocumented immigrants from entering the U.S. for employment.
“California may have been a little too aggressive on some of these, maybe that was the strategy,” said Jeanne Malitz, an immigration attorney in San Diego who frequently meets with the Department of Labor to discuss federal employment policies.
The Values Act is the primary target for the Justice Department, since ICE has argued for the past nine months that the law actively encumbers its agents from detaining individuals for deportation, a clear priority of the Trump administration. Attorneys for the government will argue that the law flouts the president’s right to detain individuals suspected of being in the country unlawfully.
The Values Act is also the one that has the best chance of surviving, said Erwin Chemerinksy, dean of the law school at University of California, Berkeley.
“The state is on very strong ground there because what the government wants to do amounts to commandeering, which the Supreme Court has ruled they cannot do,” he said. “The Immigrant Worker Protection Act may actually be interfering with federal immigration law. That’s where they’re on weakest ground.”
The case is U.S. v. State of California, 2:18-cv-00490, U.S. District Court, Eastern District of California (Sacramento).
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