There is an interesting fight on whether a State (California) can overrule a City/County law (Orange County), while itself claiming that the Federal law (United States) doesn’t apply to the State.
Yes, only in California.
What’s at issue?
California has a new “Sanctuary State” law, SB54, which prohibits law enforcement from enforcing immigration laws. Initially SB54 was construed to prevent law enforcement from communicating immigration status. More recently SB54 was re-interpreted to allow sharing of immigration status, but not to ask for it or investigate it. SB54 also prohibits local law enforcement from working with federal immigration authorities except in cases of “severe” felonies.
In response, one Orange County city passed a measure exempting itself from SB54.
- The California Attorney General has threatened to arrest the Orange County Sheriff.
- The U.S. Attorney General is suing California.
In response, the Orange County sheriff is simply notifying everybody about the immigration status of inmates, not just ICE, which does work around the issue.
Of course, President Trump has come down on the side of Orange County…
….release known dangerous criminals into communities across the State. All citizens have the right to be protected by Federal law and strong borders.
— Donald J. Trump (@realDonaldTrump) March 28, 2018
What’s the Justification?
California SB54 was a bill, not an initiative, so it passed in the legislature… along party lines (all Democrats voted for it, no Republicans did), not from citizen vote. It might not have passed a state-wide vote, due to the recent furor over killings committed by illegal immigrants in sanctuary cities.
Beyond that California doesn’t want to control immigration, another reason for this bill is the concern that local police enforcing immigration laws would result in immigrants being reluctant to call the police, which would increase their vulnerability.
On the legal front, California claims that the State’s Rights Clause (the 10th Amendment), which prohibits Congress from expanding Federal power beyond the enumerated powers, allows California to have immigrant protection laws.
The U.S. (i.e. Attorney General Sessions) claims that the Supremacy Clause overrides State’s Rights in this case.
Who Is Right?
Historically, the Feds don’t lose over primacy in court. Arizona lost an immigrant suit (Arizona SB 1070, which would have required immigrants to carry documentation), though the U.S. has an obligation to protect its borders. The Constitution does not specifically empower drug laws (e.g. why is marijuana illegal?), speed limits, seat belt laws or fuel economy standards, just for a few highly relatable examples.
In short, California will lose. Not “might”, but will. Perhaps by court, perhaps by withholding of funding, but California can’t win this battle.
The Drama – Arresting a Sheriff?
The California Attorney General Becerra has threatened to arrest the Orange County Sheriff for upholding national laws, because that would violate the (California) state “sanctuary” law.
At issue is the California law that forbids holding illegal immigrants for ICE. Several counties, with Orange County at the forefront, are opting out of this law. But… State law pre-empts local law. Of course Federal law pre-empts State law too, so conceivably, should Becerra manage to find a law enforcement official willing to try to arrest Orange County law enforcement officials, he could be arrested and tried in Federal court.
More likely, Becerra will back off because:
- He will receive legal advice.
- California already has a problem with crime committed by illegal aliens.
- MS-13 has been in the news with “unaccompanied minor” entries. And at the same time with that bust in Las Vegas.
- It could start a citizen uprising; Orange County is more conservative than much of California.
Drama Part Two – Suing a State?
Meanwhile, U.S. Attorney General Jeff Sessions has threatened to sue California over these same laws.
Interestingly, and utterly hypocritically, Governor Brown said, “This is basically going to war against the State of California” and accused Sessions of “initiating a reign of terror.”
So let’s get this straight…
- If the U.S. sues California to uphold the law, it’s “going to war” and “terror.”
- If California arrests a lawfully-appointed Sheriff for upholding the law, that is not war or terror?
For another fun quote, the ACLU’s Cynthia Valencia stated, “They must follow state law…“, completely ignoring that they must also follow Federal law.
Why Do You Care?
States Rights matter. But so do City Rights and the Federal Law. Regardless of your beliefs on immigration and on how undocumented immigrants should be treated, allowing a State to punish officials of a City for enforcing a Federal law would be a path towards anarchy. For consistency, either:
- All laws should apply most locally, in which case Orange County is right, or…
- All laws fall under the hierarchy, in which case the U.S. is right.
There really isn’t a case for California trumping the city and the country. Their only choices are to fight to change the Federal law, or to form a new country. And, as Sessions says, There Is No Secession.