New in WSJ: “Testing California’s ‘Sanctuary’ Laws”

March 13th, 2018

Ilya Shapiro and I published an Op-Ed in the Wall Street Journal on California v. Trump. Here is the introduction:

California lawmakers oppose President Trump’s pledge to step up deportations. They’ve enacted three so-called sanctuary measures designed to make it harder for immigration officials to perform their missions. There’s a long history of states resisting unpopular federal policies. Abolitionist states like Pennsylvania actively thwarted the Fugitive Slave Act by throwing slave catchers in jail, while South Carolina “nullified” federal tariffs to protect its agrarian economy. On immigration, too, states have attempted to frustrate federal policy from both sides. During the Obama administration, Arizona passed a series of measures stricter than federal law and policy.

But while states have broad police power within their own jurisdictions, they can’t interfere with federal law, which the Constitution proclaims is the “supreme law of the land.” California’s three sanctuary policies, which Attorney General Jeff Sessions challenged in a new federal lawsuit last week, fall on both sides of this constitutional line. As strong supporters of federalism, we see U.S. v. California as an opportunity to restore constitutional order and resolve simmering tensions between federal and state powers.

Due to space constraints, our discussion of 8 U.S.C. 1373–based on my blog post from last year–was cut. This excerpt explains it in some depth:

Attorney General Sessions counters that the California Values Act conflicts with a federal law, Section 1373, under which a state or local government may not prohibit the exchange of “information regarding” an individual’s immigration status. As a threshold matter, Section 1373 does not force, or commandeer, state agents to enforce federal immigration policies. Rather, Section 1373 places limits on the state’s ability to enact their desired laws. It is generally true that Congress can preempt, or disable states from legislating on areas of federal concern, like immigration. But Section 1373 goes too far, because it controls an aspect of state autonomy that is inherently local: how law enforcement agencies manage their resources and prioritize their missions. So long as the decision not to share information about an alien’s release date does not “interfere” with federal immigration enforcement—and it does not—then Congress lacks the power to regulate these local policies. There is no doubt that such a federal mandate is useful—or in constitutional terms, “necessary”—for the effective and safe enforcement of the immigration laws. It is not a “proper” exercise of federal power, however, because Congress cannot interfere with this aspect of California’s self-governance. The courts should uphold the California Values Act, and preserve this important sphere of state autonomy.

New York v. United States does not control this case, because Congress is not compelling the state to enact a new law (that is, to take title of radioactive waste). Neither does Printz v. United States, because there is no actual commandeering. Rather, the correct framework is the “proper” analysis from NFIB v. Sebelius. It is not a “proper” exercise of federal power to dictate how law enforcement agencies manage their resources and prioritize their missions

Ilya and I developed this theme in an amicus brief we filed concerning federal control of endangered species (attached at pp. 26-28). Here is the key excerpt:

The meaning of “proper” has been clarified in the recent Supreme Court cases of United States v. Comstock and NFIB v. Sebelius. Its main use in the courts has, to a degree, comported with its original purpose: protecting the states and the people from unprincipled and unbounded assertions of power.7 This is likely due to McCulloch’s warning that means employed pursuant to the Necessary and Proper Clause “may not be otherwise ‘prohibited’ and must be ‘consistent with the letter and spirit of the constitution.’” McCulloch, 17 U.S. at 421. This is a much more useful definition, and one more faithful to the original meaning.
As Justice Scalia’s concurrence in Raich put it, a law is not “proper for carrying into Execution the Commerce Clause [w]hen [it] violates [a constitutional] principle of state sovereignty.” 545 U.S. at 39 (quoting Printz, 521 U.S. at 923-24) (internal quotation marks omitted)….
In addition, whether a law is proper calls for an analysis of how it affects the separation of powers. In Printz the Court stressed that while the Commerce Clause “authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state  governments’ regulation of interstate commerce.” Printz, 521 U.S. at 924 (citing New York v. United States, 505 U.S. 144, 166 (1992)). The Court expanded on this principle in Bond, explaining that “[n]o law that flattens the principle of state sovereignty, whether or not ‘necessary,’ can be said to be ‘proper.’” Bond v. United States, 134 S. Ct. 2077, 2101 (2014) (Scalia, J., concurring). The propriety of a law, as in Printz and Bond, must be judged with respect to background principles of the bounds of Congress’s powers.

To paraphrase the emphasized sentence from Printz, even though Congress can regulate immigration directly, Congress cannot regulate state governments regulation of immigration.