Instructions: The year is 2018. Following the recent presidential election, the executive branch has increased its enforcement of the immigration laws. In response, California has enacted two so-called “sanctuary” laws. These federal and state actions have been challenged in the lower courts, and the appeals are now before the Supreme Court. You are a law clerk for the Chief Justice of the United States and are asked to prepare a memorandum of no more than 1,000 words addressing five issues.

—

Generally, in order to make an arrest, federal and state law enforcement officers must obtain a warrant from a neutral magistrate by demonstrating that there is “probable cause” to believe that a crime has occurred. However, there are exceptions where the police can make a warrantless arrest. For example, under the Immigration and Nationality Act, a federal immigration officer can make a warrantless arrest “if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest.”

California enacts the BEWARE Act (“Before Escape, Warrants Are Required for Enforcement”). Under this law, a federal immigration officer needs to follow a specific procedure in order to make warrantless arrest in California. (Arrests made with a warrant are not affected by the BEWARE Act.) First, the officer must apply for a certificate from a California state judge, by showing that a specific alien “is likely to escape before a warrant can be obtained for his arrest.” Second, a California state court is required to determine if the alien “is likely to escape before a warrant can be obtained for his arrest.” If the court does not grant or deny the request within 60 minutes, the certificate will automatically be issued. Third, once the officer has the certificate, he can make the warrantless arrest. If the officer attempts to make the warrantless arrest without the certificate, he will be assessed a civil fine of $1,000.

The Attorney General of the United States challenges the constitutionality of the BEWARE Act. The complaint argues that any potentially removable alien is, by definition, “likely to escape before a warrant can be obtained,” once he or she is released. In other words, all potentially removable aliens are, without exception, likely to escape before the government can obtain a warrant. Therefore, the state cannot impose this additional requirement on federal law enforcement. California counters that the BEWARE Act is merely ensuring that aliens in California are arrested in accordance with federal law.

Question #1: Assess the constitutionality of the BEWARE Act.

Under federal law, known as Section 1373, states “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the federal government information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

California enacts a second law, titled the RESIST Act (“Requiring Every State Institution to Share Tactfully”). Under this law, California state prisons are prohibited from sharing with the federal government any information about the release date of an alien in custody. The RESIST Act prevents federal agents from taking custody of suspects at a secure facility, reducing the likelihood that the suspects will be caught and potentially putting federal officers in dangerous situations.

The United States Attorney General demands that the California Attorney General disclose the date on which an alien, that is in the state’s custody, will be released. Citing the RESIST Act, the California Attorney General refuses to share that information. The federal government challenges the constitutionality of the RESIST Act. In response, California counterclaims that Section 1373 is unconstitutional.

Question #2: Who has the stronger argument? Is the United States correct that the RESIST Act is unconstitutional? Or is California correct that Section 1373 is unconstitutional?

In 2006, Congress enacted a statute that allows states to apply for financial grants from the federal government to support local law enforcement purchases. Under the statute, states that submit applications for grants must “comply with all applicable Federal laws.” Even before the enactment of the RESIST Act, California did not comply with Section 1373. Over the past decade, California has received roughly $5,000,000 per year (a miniscule portion of its budget), which was used to purchase new vehicles for local law enforcement agencies.

In 2018, the United States Attorney General issued a new opinion: in order to be eligible to receive these grants, states must “comply with all applicable Federal laws,” including Section 1373.

Because the RESIST Act prohibits California from sharing the release dates for aliens-in-custody, the United States Attorney General concluded that the state is not complying with Section 1373. As a result, he denies California’s request for a federal grant in 2019, even though the state meets all other requirements to receive the funding. The California Attorney General challenges the constitutionality of the denial of the federal grant, arguing that the new condition—compliance with Section 1373—has nothing to do with law enforcement grants to purchase new police vehicles. The United States Attorney General counters that Congress gave him the discretion to deny the grant.

Question #3: How should the Supreme Court resolve this conflict? Can the United States Attorney General deny California’s request for the grant?

In 2012, the Obama Administration announced a policy known as DACA (“Deferred Action for Childhood Arrivals”) that would grant lawful presence and work authorization to certain young immigrants. Over the past six years, nearly one million aliens—80% of whom are of Mexican origin—were granted status under DACA.

In 2018, President Trump issued an executive order, instructing the Secretary of Homeland Security to terminate DACA. President Trump concluded that he did not have the statutory or constitutional authority to grant lawful presence and work authorization to the DACA recipients. He also determined that the limited federal immigration resources should be focused on other priorities. Pursuant to that order, the Secretary of Homeland Security moved to terminate DACA.

The California Attorney General filed suit against President Trump and the Secretary of Homeland Secrutiy. He argued that the termination of DACA violates the Due Process Clause of the Fifth Amendment because of what he referred to as President Trump’s “long history of disparaging Mexicans, who comprise the vast majority of DACA grantees.” To support this claim, the complaint cites a number of statement made by then-candidate Trump about Mexican immigrants. For example, he said, “we have some bad hombres [men] here and we’re going to get them out.” The complaint does not cite any statements made after the inauguration. There are no allegations that the Secretary of Homeland Security made any disparaging statements concerning Mexicans.

Question #4: How should the Court resolve this claim? (Note: The California Attorney General does not dispute that President Trump has the authority to terminate DACA—he only claims that doing so violates the Fifth Amendment’s Due Process Clause.)

During the Obama administration, states that supported more restrictive immigration (like Arizona) policies tried to supplement the federal government’s enforcement priorities. During the Trump administration, states that support more open immigration policies (like California) have tried to frustrate the federal government’s enforcement priorities. This conflict is not new. Prior to the Civil War, abolitionist states sought to resist federal slavery laws. After the Civil War, segregationist states sought to resist federal reconstruction measures.

Question #5: Discuss what role the 10th and 14th Amendments should play in this perpetual conflict between the state and federal governments.