The Trump administration filed a lawsuit Wednesday seeking to strong-arm California state officials into the administration’s efforts to deport more undocumented immigrants.
At least one of the Justice Department’s three claims borders on frivolous. A second relies on the kind of aggressive reading of existing doctrines that, while likely to inspire a raft of academic articles, would nevertheless have trouble finding five votes on the Supreme Court. The DOJ’s third, and most plausible claim, challenges a provision of California law that doesn’t actually do all that much to thwart immigration enforcement. Rather, it simply requires the state attorney general to gather information on detention facilities.
The case is United States v. California. Let’s take its claims in turn, from least plausible to most.
The administration’s weakest claim conflicts with a doctrine known as “anti-commandeering,” which prohibits the federal government from commanding state or local officials to enforce a federal law or otherwise carry out a federal policy. As a general rule, the feds can hire their own law enforcement officers to arrest people who violate federal laws, or to round up immigrants who are eligible for deportation, but they cannot require state officials to enforce federal laws against the state’s will.
Nevertheless, the Trump administration claims that California state officials must be commandeered into federal service against their will.
A provision of California law provides that “California law enforcement agencies shall not … use agency or departments moneys or personnel to” take certain actions against immigrants, including providing the release dates of undocumented immigrants held for certain state offenses to federal immigration officials, and “providing personal information” about these immigrants. The Trump administration claims that this provision of state law is invalid, but that argument is tough to square with the Anti-Commandeering Doctrine. Again, just to be clear, the federal government doesn’t have the power to order state officials to cooperate with federal law enforcement.
It’s worth noting that the Anti-Commandeering Doctrine exists largely because it is favored by conservatives. Five of the six justices who joined the majority opinion in New York v. United States, which created the doctrine, were conservatives. The Court’s seminal decision in Printz v. United States, which fleshed out many of the contours of the doctrine, was a 5-4 decision by conservative Justice Antonin Scalia. So it is odd that a Republican administration would make a legal claim that’s entirely at odds with a doctrine bred and nurtured by conservatives concerned about state’s rights.
The Trump administration makes a somewhat stronger claim against a state law limiting private employers’ cooperation with federal immigration officials, but this claim faces its own unusual difficulty — the administration may have a tough time convincing Justice Clarence Thomas to back their play.
A doctrine known as “preemption” prevents states from enacting laws that conflict with federal law. The Constitution provides that duly-enacted federal laws “shall be the supreme Law of the Land,” so state laws that find themselves at odds with an Act of Congress must yield.
The DOJ relies on this doctrine to challenge two state employment law provisions. The first prohibits employers from giving “voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless the agent “provides a judicial warrant.” The second imposes similar limits on immigration officials seeking to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.”
Significantly, however, both of these employment law provisions contain an exception for immigration enforcement actions that are “required by federal law.” Thus, there is no express conflict between the California law and federal immigration law, because the California law explicitly requires employers to comply with federal law.
Nevertheless, the Trump administration claims that the California law is preempted because it runs afoul of Supreme Court decisions prohibiting state laws that create “an unacceptable ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'” This doctrine, known as “obstacle preemption” is vague and has not been applied by the Supreme Court in a consistent way. It is a genuinely interesting legal question whether a state law which explicitly requires individuals to comply with federal law can somehow stand as an obstacle to Congress’ “full purposes and objectives.”
But the Trump administration faces a serious practical difficulty if it hopes to prevail with this claim: It will need to find five votes on the Supreme Court, and conservative Justice Clarence Thomas — who in a 2009 opinion wrote that he is “increasingly skeptical of this Court’s ‘purposes and objectives’ pre-emption jurisprudence” — may not join a majority opinion. Thomas has not always acted on this skepticism, especially in politically charged cases where his vote is necessary to reach a conservative result, but if he is a man of his principles in the California litigation, DOJ will face the daunting challenge of finding enough votes to strike down California’s employment law without being able to rely on Thomas.
The final provision of California law challenged by the DOJ requires the state attorney general “or his or her designee” to “engage in reviews of county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” The attorney general will use these reviews to “provide, during the budget process, updates and information to the Legislature and the Governor.”
According to the Trump administration, U.S. Immigration and Customs Enforcement “has entered into contracts for detention services” with facilities in the state of California. It claims that “information obtained or developed as a result of an agreement with a detention facility are federal records under the control of ICE . . . and are subject to disclosure only pursuant to applicable federal information laws, regulations, and policies.” Thus, California may have contracted away its power to inspect certain records at certain facilities.
Though the Anti-Commandeering Doctrine forbids the federal government from commanding California to cooperate with federal law enforcement, nothing prevents California from voluntarily entering into an agreement with the feds. Thus, to the extent that California voluntarily agreed to waive its right to inspect certain facilities, that agreement is no less binding than any other contract.
But even if the DOJ prevails in this claim, they don’t actually gain all that much — they would obtain the right to prevent the state from gathering certain information, but not the right to actually take action against certain immigrants. And California has plenty of work-arounds at hand, should it be forbidden from inspecting its own facilities. Among other things, it could potentially cancel its contracts with ICE, thus ending the federal agencies’ ability to detain immigrants in state-owned facilities. California could also mandate that no private facility that houses state detainees may also house federal immigration detainees, under pain of losing its contract with the state.
In other words, the irony of the Trump administration’s strongest legal claim in this lawsuit, is that should the administration prevail, they could wind up coaxing California into taking even more aggressive actions that would leave ICE worse off.