Even without Trump's lawsuit, California may have to abandon sanctuary policies

Even without Trump's lawsuit, California may have to abandon sanctuary policies
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In his first week as president, Trump signed an Executive Order which directed the withholding of federal funds, except as mandated by law, from sanctuary jurisdictions that prevent their police or other local entities from exchanging immigration status information with ICE.

When Trump tried to implement this policy in California, a federal judge held in a preliminary decision that the directive was unconstitutional. A permanent injunction was ordered on November 20, 2017.

California raised the sanctuary controversy with Trump to a new level by enacting three sanctuary laws. The Justice Department filed a lawsuit on March 6, 2018, to invalidate these laws.  

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The federal courts in California are in the Ninth Circuit, and I don’t think Trump can prevail with an immigration issue related to one of his executive orders in that circuit.  

But that won’t stop Trump. He can appeal to the Supreme Court. And the presence of so many undocumented aliens in California makes it easy to predict what he will do next if he fails with the lawsuit.   

Trump has had bad luck with the federal courts in the Ninth Circuit. They apparently were so convinced by his campaign statements that he was prejudiced against Muslims that they flouted precedent to be able to block a travel ban in one of his executive orders that applied to countries with large Muslim populations.

This is illustrated by the way one of the District Court judges reacted to Trump’s revised version of the travel ban.  The judge acknowledged that he could not find religious discrimination in the language of the order:

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.

“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”

Nevertheless, he went on to say that, “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban.’”

In other words, he based his decision on Trump’s campaign statements.

According to Eugene Kontorovich, a Northwestern University law professor, “there is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.”  

And Eric Posner, a University of Chicago law professor, claims that the travel ban decisions contradict “the Supreme Court’s admonition that courts may not ‘look behind’ a ‘facially legitimate’ reason — here, the national security interest in stricter vetting — when the president exercises immigration authority.”

The California-related complaint alleges that the following state laws are preempted by federal law and therefore violate the Supremacy Clause of the U.S Constitution,” which states that federal law is “the supreme Law of the Land; and the Judges in every State shall be bound thereby”:  

  1. Assembly Bill 450, which prohibits private employers from voluntarily cooperating with ICE officers who request information relevant to immigration enforcement that occurs in places of employment.
  2. Assembly Bill 103, which requires the Attorney General of California to investigate the immigration enforcement activities of federal agents.
  3. Senate Bill 54, which limits the ability of state and local law enforcement officers to provide ICE with information about individuals who are in their custody, or to transfer such individuals to federal immigration custody.

This case is very risky for Trump. He is likely to lose in the Ninth Circuit, and it is difficult to predict how the Supreme Court would handle this federal vs. state rights issue. Immigration experts on both sides say this lawsuit takes the sanctuary-cities debate into uncharted territory.

The only certainty is that a loss would clear the way for the enactment of more sanctuary laws in California and other states.

Ironically, California’s sanctuary policies make it easier for ICE to find undocumented aliens.  

Instead of being spread out across the United States, a quarter of the nation’s undocumented aliens are living in California. California’s labor force has 1.75 million undocumented aliens.  Nearly 10 percent of its workers are undocumented aliens. And in 2014, more undocumented aliens lived in Los Angeles County, Calif., than in any other county in the United States.

This would make it easy for Trump to carry out a successful, large-scale enforcement campaign in California to arrest undocumented aliens and impose sanctions on the businesses that employ them, which is likely to be his next step if the lawsuit fails.

California could end up having to abandon its sanctuary policies to protect its undocumented population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.