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Jeff Sessions’s Wrongheaded War on California

The U.S. attorney general is suing the "lawless" state over its immigration laws, but his legal case is unconvincing.

Chip Somodevilla/Getty Images

To hear Attorney General Jeff Sessions tell it, the federal government is engaged in a titanic struggle over the very integrity of the United States. Its opponent: the defiant state of California, whose “lawless open border radicals” now apparently rank alongside the slave-owning aristocracy and other civic villains of American history.

I understand that we have a wide variety of political opinions out there on immigration. But the law is in the books, and its purpose is clear,” Sessions told the California Peace Officers’ Association in an address on Wednesday. “There is no nullification. There is no secession. Federal law is the supreme law of the land. I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln.”

To counter this supposedly dire threat to the republic, Sessions’s Justice Department filed a lawsuit against California in federal court on Wednesday, taking aim at three state laws that limit the state’s cooperation with federal immigration officials. State legislators passed all three measures last year in response to the election of President Donald Trump, who has called for mass deportations of undocumented immigrants and ratcheted up arrests and removals.

“They, our citizens, want our government to think about them for a change to consider their interests,” Sessions said, casting his hardline immigration policies as democratic prudence. “They have dreams too. Frankly, this commonsense concept was a key factor in President Trump’s election. Elections have consequences.”

Depicting the federal government in a position of weakness may be a sound rhetorical strategy. But it doesn’t capture the power dynamics at play. What Sessions’s bluster and the lawsuits elide is that the challenged California laws are far less obtrusive than they claim. They might even improve federal immigration enforcement along the way.

The first law under challenge is the Immigrant Workers Protection Act, which focuses on immigration enforcement in California workplaces. The Justice Department’s lawsuit casts the statute as a naked attempt to prevent federal enforcement of immigration laws. “California has no lawful interest in protecting unauthorized workers from detection or in shielding employers who have violated federal immigration law from penalty,” the department wrote.

Sessions also singled out the labor protections for scorn. “Just imagine if a state passed a law forbidding employers from cooperating with OSHA in ensuring workplace safety,” the attorney general said. “Or the EPA, looking for a polluter. That would obviously be absurd. But it would be no different in principle from this new law enacted by California.”

It would be absurd indeed if a state law forbade private citizens from cooperating with federal regulators. But that’s not what the law in question does. Employers can still hand over workers’ records to immigration agents and allow them access to nonpublic areas in the workplace, so long as the agents have a warrant. The ancient writ is obtrusive by nature to protect Americans from arbitrary searches and seizures. As if to validate those concerns, ICE carried out a series of workplace raids in the Golden State earlier this year in what officials suspected was retaliation for the new laws.

The second law, passed as part of an omnibus budget bill titled AB 103, focuses on immigration-detention centers operated by Immigrations and Customs Enforcement in California. Though they are federal facilities, the centers are still subject to certain state regulations like building codes and health regulations. California lawmakers took the idea a step further by mandating state inspections of these facilities, including the “conditions of confinement” and the “standards of care and due process provided.”

State lawmakers have good reasons to be wary of the detention centers. The Department of Homeland Security’s inspector general released a report in March 2017 about troubling conditions at the Theo Lacy Facility in Orange County. Investigators discovered tainted meat being served at meals, shower stalls covered in mold and mildew, and the excessive use of solitary confinement. A December 2017 report also found shortcomings in hygiene, medical treatment, and detainee safety in facilities across the country.

AB 103 rankled federal officials, who cast it as an infringement on their constitutional powers. “California has no lawful interest in investigating federal law enforcement efforts,” the lawsuit claims. “These provisions violate the Supremacy Clause by, among other things, constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against the United States.”

But it’s not clear how inspections or records requests alone would impede the federal government in any tangible way. AB 103’s text doesn’t give state officials any new powers to remedy any problems they find. Instead, their findings are supposed to be documented in a report for the governor and legislature by March 2019. Federal officials may consider inspections an “obstacle,” but the lawsuit doesn’t offer any evidence that ICE’s operations have been substantively affected by the statute.

The same can’t be said for the California Values Act, which effectively took the sanctuary-city concept and applied it to the entire state. The CVA forbids any state or local law-enforcement official from providing personal information or release dates for people in state custody, except for those convicted of certain crimes. State and local officials are also restricted from transferring people in their custody to federal immigration agents unless those agents have a warrant or other judicial order.

As intended, the law puts federal immigration officials in California in a tough spot. It “requires federal immigration officers to either engage in difficult and dangerous efforts to re-arrest aliens who were previously in state custody, endangering immigration officers, the alien at issue, and others who may be nearby,” the lawsuit said, “or to determine that it is not appropriate to transfer an alien to state or local custody in the first place, in order to comply with their mission to enforce the immigration laws.”

This is a battle that the Trump administration—and Sessions’s Justice Department, more specifically—has been waging all along. A federal judge in California issued a permanent injunction last November against an executive order that sought to cut federal funds for “sanctuary” jurisdictions, while the Seventh Circuit Court of Appeals is currently weighing a similar dispute involving the city of Chicago. It’s probable that the ultimate fate of the California Values Act and other sanctuary-type laws will be decided by the Supreme Court.

In some ways, the fight between Sessions and California mirrors a legal clash between the Obama administration and the state of Arizona that reached the justices six years ago. In Arizona v. United States, the high court struck down most of a controversial state law targeting undocumented immigrants, for usurping the federal government’s constitutional power to set the nation’s immigration policy. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law,” Justice Anthony Kennedy wrote for the majority.

Sessions and the Justice Department make similar claims today. But California’s laws are also markedly different. The state is not co-opting the federal government’s powers for itself, as Arizona did. Sanctuary cities undoubtedly make immigration enforcement more challenging, but those jurisdictions typically argue that the Tenth Amendment protects them from federal commandeering. And while ICE may be irked by dealing with warrant requirements and facility inspections, due-process protections aren’t designed with the government’s comfort in mind.