California's Pro-Immigrant SB 54 Law Should Survive Trump Attack

(Bloomberg View) -- Donald Trump’s first visit as president to the hostile territory of California highlights his struggle with the state. Most recently that battle has been over the sanctuary laws that the state Legislature has passed and that Trump’s lawyers have challenged in court.

Yet it’s worth recalling that California has a long history of acting like a republic unto itself on immigration — and that, not so long ago, the state was more hostile to immigrants than the federal government, not less.

Travel in time with me back to 1994. At that time, the state voted overwhelmingly (59 percent to 41 percent) by referendum to adopt Proposition 187, also known as the Save Our State initiative (SOS, get it?). Republican Pete Wilson was governor, and he rode his support for the initiative to a successful run for a second term.

Prop 187 was the polar opposite of the sanctuary laws recently adopted by the state. It imposed an affirmative obligation on California law-enforcement officials who suspected that an arrestee might be undocumented to investigate the person’s immigration status and report the person to the Immigration and Naturalization Service. Local governments were ordered to comply.

The same investigation requirement applied to anyone seeking public benefits from the state — benefits like health care, education and welfare that the initiative expressly denied to undocumented people.

Pro-immigrant advocates challenged Prop 187 in federal court. A district court blocked almost every aspect of the initiative from taking effect. The judge’s reasoning was that Congress, not California, has legal authority over immigration. “California,” she held, “is powerless to enact its own legislative scheme to regulate immigration … It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits.”

Governor Wilson filed an appeal, but when Democrat Gray Davis succeeded him, in 1999, he withdrew the appeal in favor of a mediation that ended up scrapping the initiative.

The judge’s ruling accurately depicted the politics of the initiative: California voters wanted to establish their own immigration regime, far harsher than the one adopted by federal law.

Today California politics have changed markedly — but the state is still pursuing a policy strikingly different from federal norms.

Senate Bill 54, which is now state law, specifically prohibits state and local law enforcement officials from investigating arrestees’ immigration status or reporting that status to federal authorities. This is, of course, 180 degrees opposite from Prop 187, which demanded investigation and reporting.

The Justice Department has challenged SB 54 as well as two other state sanctuary laws in court. Unsurprisingly, the feds’ legal theory is that California is once again pre-empting the federal authority to make immigration policy.

The two other laws may actually go too far. One makes it a crime for private business owners in the state to cooperate voluntarily with federal officials performing investigations in the workplace. That probably interferes too much with federal authority, not to mention the employers’ liberty.

The second law creates a system whereby the state attorney general would investigate federal immigration officials’ enforcement efforts. There’s no strong reason a state couldn’t investigate federal officials suspected of a crime; but this law looks like a state effort to impede federal law enforcement, which exceeds the state’s authority.

But SB 54 is lawful. Under Supreme court precedent, the federal government can’t “commandeer” state officials to do its bidding in law enforcement. That means the federal government can’t make California law enforcement investigate or report immigration status. It also means California can decline to expend its resources to enforce federal law.

The legal difference between Prop 187 and SB 54 is the result of the structure in the Constitution as interpreted by the courts. Congress has the right to occupy any field of law within its authority. But it can’t coerce or blackmail states to do its will.

In parallel, states can’t pass laws in areas where Congress is in control — but they can refuse to help the federal government enforce laws Congress has passed.

This constitutional doctrine reflects an attempt (imperfect, to be sure) to balance states’ rights against federal authority. The enduring political reality is that some states want to go their own way on issues of major national importance.

California’s political views have changed, but California’s sense of itself as a quasi-republic far from Washington and entitled to makes its own rules hasn’t changed.

Trump’s visit, then, serves as a powerful reminder that no president can impose his will throughout the country. The president of the United States doesn’t rule. He governs — and even that power can only be exercised in conjunction with Congress.

Federalism is a delicate system that needs constant care, feeding and updating by the courts. But when it works, its successes follow from the recognition that a big country includes many different perspectives and beliefs.

The Chinese have a maxim for it: “The mountains are high, and the emperor is far away.” Donald Trump isn’t the emperor, despite his apparent frustration with that reality. The Rockies — and federalism — keep him from becoming one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.

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