California asserts global power in defiance of Trump administration policies
Holly Doremus: “I see this as California continuing to assert that it can do more than the federal government is doing, even in terms of relations with other nations.” Photo courtesy of UC Berkeley School of Law.
Congressional gridlock and the deep political divide in Washington, D.C., on immigration have opened the door for the states to set policy themselves. “At a time when national progress on immigration reform seems locked in a state of perpetual inertia, state and local officials have stepped into the breach, enacting a host of immigration initiatives,” they stated in Foreign Affairs Federalism.
Take the California Values Act, also known as California’s “sanctuary state law.” Signed by Brown a year ago, the law limits local police involvement in deportations. Among other provisions, it bars local authorities from automatically transferring people to federal immigration authorities.
Since last year, California also has passed a raft of legislation that extends resources and benefits to immigrants. This includes the California Dream Act, which allows top students on the path to citizenship to apply for college financial aid, and a law to provide health care and other protections to undocumented children in the state.
Holly Cooper, co-director of the immigration law clinic at the University of California at Davis School of Law, says California has long been a leader in advancing immigration rights. “The state legislature has done more than the federal government for immigrants in at least the last 20 years I’ve been a lawyer,” she says.
But states historically also have taken the opposite approach, aiming to restrict rather than expand immigrant protections.
The best-known recent example is a 2010 Arizona law that, among other things, allowed police to check the immigration status of anyone they arrested or detained and made it a crime to be in the state without valid immigration papers.
Photo of Former U.S. Attorney General Eric Holder Jr. Photo by Kathy Anderson.
The Supreme Court struck down key provisions of the law in 2012, relying on the pre-emption doctrine, derived from the Constitution’s supremacy clause, which says federal law will prevail when federal and state laws conflict.
“Integrationist” laws, such as California’s, have proven to be more successful against legal challenges than restrictive ones like Arizona’s, according to Engstrom and Weinstein. That’s because the high court generally has allowed states to regulate immigrants and immigrant services while leaving control of immigration to the feds.
Still, the widening conflict about sanctuary cities is severely testing that delicate balance and any straightforward application of the supremacy clause to resolve competing state-federal interests.
At the center of that dispute is Trump’s January 2017 executive order denying federal funds to jurisdictions that limit cooperation with immigration enforcement. Lawsuits against the order have argued it violates anti-commandeering principles under the 10th Amendment by requiring state and local officials to enforce federal immigration law.
“The whole issue is that the federal government can’t commandeer local resources to do its own work,” says James Williams, county counsel for Santa Clara County. “We’re asking our sheriff’s deputies to focus on crime and law enforcement, not civil immigration violations.”
Santa Clara, with the city and county of San Francisco, won a key victory last November when a federal judge permanently blocked Trump’s executive order for violating the 10th Amendment, among other reasons. The case was appealed to the 9th U.S. Circuit Court of Appeals at San Francisco, which, in a 2-1 decision in early August, agreed with a lower court that the order exceeded the president’s authority.
While defending the executive order, the Trump administration also has gone on the offensive against California’s pro-immigration legislation.
In March, it sued the state regarding the California Values Act and two other laws—one that bars private employers from voluntarily complying with immigration enforcement in the workplace and another that requires the state attorney general to investigate immigration enforcement efforts by federal agents.
The Department of Justice argues the laws are pre-empted by federal law and interfere with the government’s ability to enforce U.S. immigration laws.
California Gov. Jerry Brown and President Donald Trump have clashed over the deployment of National Guard troops at the Mexican border. Photo by Kent Porter/The Press Democrat via AP.
legal HEAVYWEIGHTS gear up
California’s fierce immigration fight underscores another reason why it’s poised to lead the way in foreign affairs federalism: It has the resources and legal muscle to back up novel policies and legal arguments.
For one thing, the state DOJ and municipal legal departments have built impressive litigation shops staffed with talented young lawyers.
“Even to this day, outside places like California, few localities have the capacity to conduct the kind of gritty, full-fledged litigation that Santa Clara County and San Francisco have done in the sanctuary cases,” Engstrom tells the ABA Journal.
Photo of California Attorney General Xavier Becerra by Chris Allan/Shutterstock.com
Williams says litigation is handled through its social justice impact litigation team, a dedicated unit of six to 12 lawyers (out of 85) that has brought lawsuits taking on topics such as the opioid industry and the Trump administration’s elimination of net neutrality rules.
If that wasn’t enough, the county counsel also brought on heavyweight San Francisco litigation boutique Keker, Van Nest & Peters as outside counsel on a pro bono basis. “They brought a lot of heft to be able to move quickly and aggressively to file for the preliminary injunction [against the executive order] right away,” Williams says.
At the state level, the California legislature enlisted its own ringer last year to help shape legal strategy to challenge Trump administration policies in the form of former U.S. Attorney General Eric Holder Jr.
The state Assembly ended its contract with Holder after four months, but he and his Washington, D.C.-based firm, Covington & Burling, have continued to represent the state Senate on a per-project basis. That includes handling amicus briefs on its behalf in the Chicago sanctuary city case and against the DOJ suit to invalidate the California Values Act.
California Attorney General Xavier Becerra also has emerged as a leader in the resistance effort. The state DOJ so far has filed 36 lawsuits against the Trump administration challenging environmental, consumer, health care and immigration policies.
The state, for example, has led legal action against the administration’s planned border wall, the travel ban and, more recently, its family separation policy at the U.S. border. It also has sued over inclusion of a question concerning citizenship on the 2020 U.S. census form and to protect health subsidies under the Affordable Care Act.
California suffered a setback in the Supreme Court’s travel ban ruling, and a federal judge rejected the attempt by the state and environmental groups to stop the government from building a border wall earlier this year. Becerra also has notched victories, but many cases are still ongoing.
To fuel its battles with the Trump administration, the state DOJ added about 20 attorneys earlier this year and was allotted an extra $6.5 million by the legislature for the 2017-2018 fiscal year. With 1,100 attorneys and 5,000 staff overall, it’s no small operation.
Mark F. Walsh is a New York City-based freelance writer. He is a former reporter for ALM Media publications.
This article was published in the October 2018 ABA Journal magazine with the title "California Dreaming."
