Notice & Comment

U.S. v. California: The District Court’s Preliminary Injunction Ruling

On March 6, 2018, the Justice Department sued California over its “sanctuary” laws.  U.S. v. California, Dkt No. 18-264, Complaint (E.D. Cal.); Thomas Fuller & Vivien Yee, Jeff Sessions Scolds California in Immigration Speech: “We Have a Problem,” N.Y. Times A22 (March 7, 2018).  The District Court has now ruled on the federal government’s preliminary injunction motion.  United States v. California, 2018 WL 3301414 (E.D. Calf. July 5, 2018).  This post summarizes and critiques the ruling.  A more comprehensive analysis will appear in A New Sheriff’s in Town:  The Trump Administration and “Sanctuary” Jurisdictions, my contribution to an upcoming University of Missouri at Kansas City Law Review symposium edition.

California’s Sanctuary Laws

California adopted three “sanctuary” laws in 2017.

Assembly Bill 103 (“AB 103”) mandated that all county, local, and private facilities holding noncitizens for “civil immigration proceedings” provide access to the California Attorney General.  He was directed to review “the conditions of confinement,” the “standard of care and due process” provided, and the “circumstances around [the detainees’] apprehension and transfer to the facility,” and issue a comprehensive report.

The Immigrant Worker Protection Act, Assembly Bill 450 (“AB 450”), prohibits private employers from consenting to warrantless searches of their premises’ nonpublic areas by ICE agents.  AB 450, §1.  It also bars them from providing ICE officials access to employees’ personnel records without a subpoena or warrant.  Id., §2.  Though ICE inspections of I-9 employment verification forms or related documents pursuant to a notice of inspection are exempted from the subpoena/warrant requirement, id., employers are required to give 72 hours advanced notice of such an inspection to their employees.  AB 450, §4.  Moreover, within 72 hours of receipt of notification from ICE of the results of the inspection, the employer has to: (1) provide each employee whose forms immigration officials found deficient copies of the notice identifying those deficiencies, and (2) afford each such employee an opportunity to meet with the employer to address the deficiencies.  Id.  I discussed these provisions at length in Bernard W. Bell, United States v. California: A Preliminary Assessment of the Challenge to California’s “Immigrant Worker Protection Act, 36 YALE J. ON REG.: NOTICE & COMMENT (March 31, 2018).

The California Values Act, embedded in Senate Bill 54 (“SB 54”), precluded California law enforcement authorities from (a) inquiring into a person’s immigration status, (b) holding an individual on the basis of an ICE detainer, (c) providing to immigration authorities non-public information regarding an inmate’s or detainee’s release date, and (d) providing immigration authorities any personal information about an individual, inter alia.  SB 54, §3 (Cal. Gov’t Code §7284.6(a)(1)).  The statute also prohibited “[t]ransfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination.”  SB 54, §3 (Cal. Gov’t Code §7284.6(a)(4)).  However, these strictures did not apply to information regarding the release date of a subset of criminals held in  custody.  SB 54, §2 (Cal. Gov’t Code §7282.5(a). I have discussed sanctuary policies mandating the withholding of information from federal authorities in Bernard W. Bell, Sanctuary Cities, Government Records, and the Anti-Commandeering Doctrine, 69 RUTGERS L. REV. 1553 (2018), and Bernard W. Bell, De-Funding Sanctuary Cities, YALE J. ON REG.: NOTICE & COMMENT (March 28, 2017).

The Preliminary Injunction Ruling

On July 5, 2018, the District Court enjoined enforcement of AB 450, preliminarily determining that the restriction on employer consent to warrantless searches was unconstitutional.  However, it upheld AB 103’s provisions mandating access to immigration detention facilities, and SB 54’s directive that state and local agencies refuse to cooperate with ICE.

In assessing AB 103, the District Judge found nothing in the Immigration and Nationality Act of 1965 (“INA”), Pub. L. 89-326, 79 Stat. 911 (1965)(codified as amended at 8 U.S.C. § 1101 et seq.), evidencing any intent to deprive States of “oversight over detention facilities operating within their borders.”  United States v. California, at *6.  The Judge distinguished AB 103 from state licensing regulations like the one the Supreme Court invalidated in Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956), because “AB 103 does not impose any substantive requirements upon detention facilities.”  United States v. California, at *7.  The Judge also concluded that California’s assertion of authority did not transgress the limits imposed on state governments by the intergovernmental immunity doctrine.  That doctrine prohibits states from either regulating the federal government directly or discriminating against those who “deal with” the government.  Id. at *4. AB 103 did not apply to federal-run facilities.  And the mandated Attorney General review of private facilities contracting with the federal government appeared “no more burdensome than reviews required” generally under California law, id. at *8 (citing California Penal Code §§ 6030, 6031.1), and thus was not discriminatory.

With respect to the federal government’s obstacle preemption challenge to AB 450’s provisions prohibiting private employers from consenting to ICE searches, the Court concluded that limiting federal agents to reliance on warrants “may impede” ICE investigations.  Id. at *9.  But the Court avoided resolving the difficult obstacle preemption issues by holding that the United States would likely prevail on an intergovernmental immunity theory —employers who “dealt with” the government were treated more harshly than those who did not.  In particular, employers who choose to allow immigration enforcement agents entry were subject to “significant and escalating fines,” while those who rebuffed them were not.  Id. at *10.  The Court rejected the argument that the prohibition on discrimination against those who “deal with” the federal government protects only to government contractors and suppliers.  Id.

With respect to AB 450’s provisions mandating advance notice to employees of inspections of I–9 verification forms, the federal government argued that mandating notice to ICE’s investigatory “targets” undermined federal enforcement efforts.  Id. at *11.  But emphasizing Congress’ “focus on employers” in the Immigration Reform and Control Act’s (“IRCA”), Pub. L. 99–603, 100 Stat. 3359 (1986)(codified in scattered sections of 8 U.S.C.), the Court found “no indication—express or implied—that Congress intended for employees to be kept in the dark” regarding ICE agent’s review of verification records.  United States v. California, at *11.

With respect to SB 54, the federal government argued that the restrictions on providing information to ICE agents conflicted with 8 U.S.C. § 1373, which provides that neither federal, state, nor local officials may “prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”  California argued that the provision violated the anti-commandeering doctrine.  The District Judge avoided resolving the “interesting, and seemingly open, constitutional question” that would be raised by an expansive interpretation of section 1373.  He construed section 1373 narrowly, to cover only information about a person’s immigration status, but nothing else, not even an alien’s address or release date.  And he did so using a textualist approach, perhaps seeking to inoculate the ruling from reversal by conservative appellate judges.


AB 103 Access to Facilities Run By Federal Contractors

The District Court erred in upholding AB 103 as to private facilities.  The mandated access is a part of California’s impermissible exercise of supervisory authority over the federal government’s detention of individuals under federal authority.  And it covers not only conditions at such facilities, but also the provision of due process and the apprehension and transfer of individuals to such facilities.

In McCulloch v. Maryland, 17 U.S. 316 (1819), the U.S. Supreme Court rejected the proposition that a state government, or even the state governments acting in concert, possessed supervisory authority over the federal government. Id. at 402-403 (rejecting the concept that “[t]he powers of the general government . . . are delegated by the states, who alone are truly sovereign, and must be exercised in subordination to the states, who alone possess supreme dominion.”); accord, id. at 429-30.  Rather, because the federal government was created by “the people of the United States,” only they, acting through their elected representatives, possessed such supervisory power. Id. at 402-05, 429.

But, as the District Court noted, while states cannot tax or regulate federal facilities, they may regulate “those who deal with” the federal government, so long they do so in a neutral way that does not discriminate against them.  Moreover, in assessing whether such discriminatory treatment exists, the purportedly discriminatory regulation “cannot be viewed in isolation,” but must be considered in the context of the entire[ty] [of the relevant] regulatory system.”  North Dakota v. U.S., 495 U.S. 423, 437-38 (1990)(plurality)(citing Washington v. U.S., 460 U.S. 536, 544-45 (1983)).

However, private detention facilities should be equated with the federal government—any state regulation should be prohibited.  They should be treated as arms of the federal government because such facilities engage in a “public function.”  Under the “state action,” doctrine, performance of certain tasks by private entities can nevertheless be considered “state action” because those tasks are “public functions.”  Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-63 (1978); Jackson v. Metropolitan Edison, 419 U.S. 345, 352-53 (1974).  The Court has defined “public functions” quite narrowly.  A private entity engages in a public function when it “exercise[s] . . . some power traditionally associated with sovereignty.”  Id. at 352-53.  Detaining individuals not admitted to the United States or awaiting a determination regarding their entitlement to remain is surely a power “traditionally associated with sovereignty.”  As Max Weber observed, “the state” is the “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”  Max Weber, “Politics as a Vocation” 1 (1918).  Moreover, it has long been an “‘accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.’ ” Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U.S. 651, 659, (1892)).

Supervision of immigration detainees and private facilities that house them is solely within the purview of the federal government and “the people of the United States.”  Thus, the appropriate federal inspector generals can investigate and issue reports regarding conditions at detention facilities and the provision of due process.  Inspector General Act, Pub. L. No. 95-452, 92 Stat. 1101 §4(a)(5) (Oct. 12, 1978)(codified as amended at 5 U.S.C. App.).  Congress undoubtedly has a right to gain access to institutions and obtain documents necessary to perform its oversight function.  And through petitions for habeas corpus, 28 U.S.C. §2241, federal courts can examine conditions in detention facilities and compliance with due process requirements, see, e.g., Aamer v. Obama, 742 F.3d 1023, 1030-33 (D.C. Cir. 2014), though the issue is not entirely free from doubt, id.

AB 450 Regulating Private Employer’s Consent to ICE Searches and Inspections

The District Court’s attempt to use the intergovernmental immunity doctrine to avoid grappling with obstacle preemption in addressing AB 450’s provision precluding employers from agreeing to consent searches if flawed.  The Court concluded that the statute discriminated against those who “deal with the state.”  It focused on the unfavorable treatment of employers who violated the state law by consenting to ICE searches vis-à-vis employers who did not.  But the intergovernmental immunity cases protect the proprietary interests of the federal government, i.e., ts relationship with it contractors and suppliers, not its relationship with regulated entities.

In South Carolina v. Baker, 485 U.S. 505 (1988), the Court laid out the contemporary anti-discrimination principle: “under current intergovernmental tax immunity doctrine the States can never tax the United States directly but can tax any private parties with whom it does business, even though the financial burden falls on the United States, as long as the tax does not discriminate against the United States or those with whom it deals.”  Id. at 523 (emphasis added).  The phrase “or those with whom [the government] deals” clearly refers to “private parties with whom the government does business,” not all entities regulated by the federal government.  Similarly, in North Dakota, the plurality observed: “Since a regulation imposed on one who deals with the Government has as much potential to obstruct governmental functions as a regulation imposed on the Government itself, the Court has required that the regulation be one imposed on some basis unrelated to the object’s status as a Government contractor or supplier.” North Dakota, 495 U.S. at 438 (emphasis added); see, id at 452-55 (Scalia, J., concurring); id. at 460 (Brennan, J., dissenting).

Moreover, the District Court’s expansive view of the doctrine is untenable—it would invalidate any state statute establishing obligations and imposing penalties (i.e., any regulatory statute) that applied to entities regulated concurrently by the federal government.  Those who violate the state statute at a federal official’s behest will always be subject to harsher treatment than those who do not.  The District Court was unwilling the follow the logic of its own analysis when considering AB 450’s employee notice provisions.  It held that those provisions did not violate the anti-discrimination requirement. U.S. v. California, at *11.  But, like employer who consents to ICE searches, employers who agree to ICE requests to withhold employees notification are subject to “significant and escalating fines,” while entities that resist ICE’s entreaties are not.

Limiting the intergovernmental immunity doctrine to the federal government’s proprietary relationships does not leave the federal government’s exercise of regulatory powers over private individuals unprotected.  Rather the protection of federal regulatory interests lies in preemption doctrine.  And that leads back to the tough “obstacle preemption” questions the District Court sought to avoid in the first place.

The District Court’s attempt to avoid balancing California’s interest in providing employees notice and an opportunity to correct deficiencies in their employment verification forms and the federal government’s concern about undocumented alien’s risk of flight may well be unsuccessful.  The District Court essentially dismissed the risk that advance notice would enable undocumented aliens to flee because the enforcement scheme focused on employers, not employees.  While that is undoubtedly correct, Congress’ overall statutory purposes likely included discouraging undocumented aliens from remaining in the United States.  And Congress made undocumented aliens’ use of fraudulent documents a crime.  18 U.S.C. §1546(b).  AB 103 may well allow undocumented aliens inclined to use fraudulent means of obtaining employment the security of knowing that if their documents are checked and found wanting they will receive sufficient advanced notice to disappear.  By enabling such individuals to flee, the California statute may well serve as an obstacle to the accomplishment of overall purposes of the laws regarding alien employment or federal immigration policies more generally.  After all, many inspection systems impose obligations on regulated entities, as a part of a regime aimed at controlling the conduct of those with whom the regulated entity interacts.  All this does not mean California’s statute should be found to be preempted, but merely that the risk of flight attendant advance notice of ICE’s inspection of employment documents cannot be disregarded in conducting the preemption analysis.

SB 54 State and Local Non-Cooperation with Immigration Authorities

SB 54 seems to conflict with 8 U.S.C. §1373.  Section 1373 bars state and local governments from prohibiting their own employees from providing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”  The Senate Report on the provision clearly states the provision’s purposes:

Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act.

S. REP. NO. 104-249, at 19–20 (1996). The provision raises serious constitutional questions under the U.S. Supreme Court’s anti-commandeering doctrine (and the Trump Administration’s use of the doctrine to de-fund sanctuary jurisdictions raises additional constitutional questions).

The District Court elided the anti-commandeering doctrine issue by embracing a narrow, textualist construction of section 1373.  It read the provision as preventing state and local authorities from merely interdicting provision of information regarding citizenship and immigration status. United States v. California, at *15-16.  In its view, state and local governments could restrict provision of any other information, including information that would help federal authorities locate such individuals.

The District Court’s interpretation will likely be considered overly literal.  It suggests that state and local officials are prevented from precluding their employees from giving immigration authorities only information they either already have, namely the legality of the person’s presence in the country, or are likely to have in many cases, their citizenship.  Under that interpretation, Congress’ adoption of the statute would have been a “meaningless exercise;” courts avoid interpreting statutes in such a manner.  See, e.g., Rumsefeld v. Forum for Academic and Institutional Rights, 547 U.S. 47, 57-58 (2006); Rubin v. Islamic Republic of Iran, 824-25 (2018); Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945), aff’d, 326 U.S. 404 (1945); but see, Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004)(preferring plain meaning over superfluidity canon).  And in such circumstances, most judges (perhaps even some devotees of textualism) might consider the Senate Report in construing the provision.


Despite the above critique, the District Court’s opinion has much to recommend it.  But given the complexity of the numerous legal issues in the case, it is unlikely that the opinion will survive appellate review unscathed.

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