California’s immigration defiance gets long-awaited pushback
California Democrats have enjoyed the posturing and the publicity, but last week Attorney General Jeff Sessions flew from Washington, D.C., to Sacramento to deliver a scathing speech to a group of law-enforcement officials announcing his own lawsuit against those state laws. He made some reasonable points, but Sessions’ efforts are largely about posturing, too.
“Stop treating immigration agents differently from everybody else for the purpose of eviscerating border and immigration laws and advancing an open borders philosophy shared by only a few, the most radical extremists,” Sessions said. He took a swipe at Oakland Mayor Libby Schaaf for giving residents of her city a heads up about coming raids. That will only raise her profile, of course.
Gov. Jerry Brown and California Attorney General Xavier Becerra shot back. “I call upon him to apologize to the people of California for bringing the mendacity of Washington to California and trying to insert discord and division, and I might add dysfunctionality, in a state that’s really working,” Brown said at a press conference.
I’ve got conflicted views. Immigration is primarily a federal matter, but states have wide latitude to pass laws involving that — and many other — topics. It’s wrong to release criminals onto the street to poke federal immigration authorities in the eye. But sanctuary laws have a reasonable state purpose. California has a large population of people living here illegally. If they fear deportation if they contact the police about a crime, then that erodes public safety.
Indeed, Sessions’ lawsuit against California suffers from the same problem as California’s multiple lawsuits against the federal government. They are long on symbolism — and short on legal justification. The lawsuit argues that California’s sanctuary-related laws impede the efforts of federal officials to conduct their jobs in California.
But as Reason magazine explains, that argument “would run afoul of both the 10th Amendment and Supreme Court precedent” because it would “force local police to participate in the administration of federal law.” The publication cited Justice Antonin Scalia’s opinion in a 1997 high-court case ruling that “the federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”
Like it or not, California has every right to make laws determining how state and local officials behave. The feds can withhold funds, but they cannot force them to bend to their will. Conservatives used to understand the importance of federalism and the 10th Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
Trump supporters are driven by frustration with California’s zany liberal priorities and are thrilled with the new direction of the current administration, but states’ rights create a bulwark against federal tyranny. Let’s say a liberal Democrat were president (think Barack Obama) and a “red state” such as Mississippi or Nebraska passed a law allowing the concealed carry of firearms or limiting access to late-term abortions. What would conservatives say if the feds then tried to force those states to submit to more liberal federal dictates?
He also has championed the use of civil asset forfeiture by police to take the property of Americans even if they have never been convicted of any crime. Under that policy, the feds can partner with local police agencies to take cars, homes and cash from people based merely on the suspicion that the property was used for illegal purposes. This has led to outrageous abuses. Many states have passed laws to reduce such affronts to the Fifth Amendment’s guarantee of due process, but Sessions is circumventing these state responses.
“We are going to fight these irrational, unfair, unconstitutional policies that have been imposed on you and your officers or our federal officers. … And we intend to win this fight,” Sessions said in his recent immigration speech. Yet he is the one that’s at odds with the Constitution. As much as I disagree with California’s leaders, I’ll hold my nose and support their right to pass even foolish laws.