'This is basically going to war': DOJ and California locked in battle over sanctuary laws

FILE - U.S. Immigration and Customs Enforcement (ICE) deportation officers and special agents arrested 212 individuals for violating federal immigration laws in the Los Angeles area during a five-day targeted operation in February 2018. (Photo: ICE.gov)

After months of back and forth fights between the Trump administration and sanctuary jurisdictions, the Department of Justice and the state of California are squaring off in a lawsuit that will determine whether a state can implement policies that are at odds with the federal immigration laws.

On Tuesday evening, the Department of Justice filed a legal complaint against the state of California arguing that three of the state's laws purposely make it more difficult for federal immigration officers to carry out their responsibilities.

Attorney General Jeff Sessions delivered a speech in Sacramento on Wednesday, saying the government will bring to bear its authority and resources to "invalidate" and "immediately freeze" the effect of the state's so-called sanctuary laws.

"California, it appears to me, is using every power it has—and powers it doesn’t have—to frustrate federal law enforcement," Sessions said. "So you can be sure I’m going to use every power I have to stop them."

California Gov. Jerry Brown shot back, calling the lawsuit a "political stunt" and "pure red meat" for President Donald Trump's political base.

"This is a very aggressive act on the part of the Trump administration," Brown said at a joint press conference with California Attorney General Javier Becerra. "This is basically going to war against the state of California, the engine of the American economy. It’s not wise, it’s not right, and it will not stand."

Brown openly asserted that California will appeal the case all the way to the Supreme Court if necessary, in a suit he said "is going to last a lot longer than the Trump administration."


The Department of Justice based its lawsuit on three laws the California legislature passed in 2017 in response to President Trump's stricter immigration enforcement priorities.

The three laws essentially limit the amount of cooperation between state law enforcement officials and employers with Immigration and Customs Enforcement, either by imposing new legal requirements on ICE or ordering local law enforcement or employers not to share information about an individual's immigration status.

The core question for the Department of Justice is proving that the California laws infringe on the federal government's authority to make and implement immigration laws, and that the state is trying to usurp federal authority.

In his speech on Wednesday, Jeff Sessions raised the specter of the Civil War, the most dramatic instance of states challenging the supremacy of federal law.

"There is no nullification. There is no secession. Federal law is 'the supreme law of the land,'" Sessions stated. "I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln. This matter has been settled."

Jerry Brown described the portion of the speech as "unusual, particularly [for] a fellow coming from Alabama talking to us about secession."

Brown then characterized the administration's lawsuit as "basically going to war against the state of California."


The political rhetoric on both sides is heated, but according to California officials, the law was crafted to avoid overstepping state authorities. "We're not trying to enact immigration law," Becerra told reporters. "We're enacting public safety laws."

Mark Fleming, associate director for litigation at the National Immigrant Justice Center, believes California has a compelling case in what he described as an "ever-escalating" battle between localities and the Trump administration over immigration.

"There's a recognition from the federal government that, at least under current law, they can't make local law enforcement do the work of Immigration and Customs Enforcement," Fleming explained.

One of the most central functions of a sovereign state, is its authority to direct police and law enforcement. "That has always been considered exclusively a matter that is squarely within the state's authority," he continued, noting the government complaint is silent on the issue.

The federal government would be on shaky ground to challenge that authority, Fleming said, which is the "core provision" of California's so-called sanctuary laws.

That is California's essential argument in SB 54, that federal immigration enforcement cannot compel local law enforcement to provide information.

The government argument is also compelling, asserting that by not cooperating, California, or any other state or locality, is actively obstructing federal immigration enforcement efforts.

"I think it's an uphill battle for California," said Andrew Arthur, Center for Immigration Studies resident fellow in law and policy. "After years of nonenforcement or ineffective enforcement, the Department of Justice is now demanding strict enforcement of the immigration laws of the United States, and the states are pushing back."

California will now have to prove that neither of its statutes creates an obstacle to the federal government's enforcement of the immigration laws or discriminate against federal immigration enforcement.

One of the most difficult laws for California to defend will be the Immigration Worker Protection Act, or AB 450, Arthur said. While supporters of the law argue it was enacted to prevent abusive employees from threatening undocumented workers with ICE raids, it imposes new legal restrictions on ICE that do not apply to any other federal law enforcement agencies.

Under the state law, an employer can no longer consent to a request from ICE to investigate a workplace, unless they are presented with a warrant. Employers who voluntarily consent to a search without a court order can now be punished with fines as high as $5,000.

"It essentially puts the employer between ICE and the state of California," Arthur said.

Click here to read the Department of Justice complaint.


Both sides have argued that their laws serve the interest of public safety. In California, Senate Leader and sponsor of SB 54, has argued that sanctuary communities are "safer than comparable non-sanctuary jurisdictions" because undocumented immigrants are less afraid to interact with law enforcement.

With more than 2.3 million people living in the state illegally, de Leon and other politicians worry that the undocumented population will be forced into the shadows, that otherwise law-abiding individuals will not report crimes, fires, or seek necessary medical care.

According to ICE Director Thomas Homan, undocumented immigrants now have even more to fear if they live in sanctuary jurisdictions.

"California better hold on tight," Homan told Sinclair Broadcast Group in an interview last month, because the state "is going to see more [ICE] officers" and "more arrests" in immigrant communities.

As a result of the state's decision to limit information sharing and cooperation between federal and local law enforcement, Homan said he has been forced into that position. Rather than deploying a single officer to a county jail to take custody of an individual, he said he is now obligated to send more officers into immigrant communities to look for undocumented criminal aliens released by local law enforcement.

"There are going to be more arrests in those immigrant communities and more...collateral arrests," he continued. In part, that is because the current administration has changed its priorities for removing illegal immigrants.

Under President Barack Obama, ICE was ordered to prioritize the removal of "felons, not families," putting violent criminals, gang members and recent border crossers at the top of the list for immediate removal.

When President Trump took office, he issued an executive order that shifted the Department of Homeland Security's focus.

Not only would immigration enforcement target criminals who threaten national security and public safety, but also fugitives who have received a court order for removal, and immigrants who re-enter the country after being informally removed. Federal officials were also authorized to do "collateral arrests" of anyone who was in the country illegally.

"Under the new executive order, we don't turn a blind eye anymore," Homan said. As a result, ICE made twice as many non-criminal or collateral arrests in 2017 than it did the year before.

The next step in the lawsuit will be for Eastern District Court of California to appoint a judge to preside over the case. After that, the expectation is for both California and the federal government to be locked in a legal battle that is likely to be resolved by the Supreme Court.

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