California lawmakers have declared war on Donald Trump, pushing a rash of immigration-related bills in the state’s General Assembly meant to undercut the president-elect’s enforcement agenda before he even takes office.
The legislation confronts Trump on a variety of immigration fronts — some real, some imagined. Many are of dubious constitutionality in a realm the Supreme Court has held in recent years is the exclusive province of the federal government.
“All throughout the Obama years, California’s been engaging in laws and programs that completely go against the Constitution’s Supremacy Clause which allows states to only mirror, not exceed, our national immigration laws.”
“To the millions of undocumented residents pursuing and contributing to the California dream, the state of California will be your wall of justice should the incoming administration adopt an inhumane and overreaching mass-deportation policy,” Senate President Pro Tem Kevin de León said in a statement this month announcing a bill to create “safe zones” for illegal immigrants.
State agencies would be required to update confidentiality policies, and immigration enforcement would be banned at public schools, hospitals, and courthouses.
The law, an extension of “sanctuary” policies already adopted by California and many local jurisdictions in the Golden State, would run headlong into Trump’s vow to stamp out such resistance. The Center for Immigration Studies this week outlined a long list of options at the new president’s disposal, including cuts in federal funding, civil suits — and possibly even criminal charges under alien-harboring statutes.
“All throughout the Obama years, California’s been engaging in laws and programs that completely go against the Constitution’s Supremacy Clause which allows states to only mirror, not exceed, our national immigration laws,” Immigration Reform Law Institute Executive Director Dale Wilcox wrote in an email to LifeZette. “But with an Attorney General [Jeff] Sessions coming up, a man who understands immigration law and the Constitution, they’ll hopefully be getting hit with a serious federal challenge.”
De León’s bill is not the only line of attack in the state legislature. State Sen. Ricardo Lara, a Democrat from Los Angles County, announced his intention this month to introduce bills to fight against a Muslim registry, Trump’s proposal to build a border wall, and the detention of illegal immigrants.
“We’re going to fight for California and for our values of democracy, freedom, and basic human decency,” he said in a statement.
Legal experts said all three bills have serious constitutional flaws.
Stopping a border wall. One bill would require a vote of the people to approve a wall between Mexico and the United States in California. Lara contends the project would harm the environment, endanger wildlife, and hurt trade and tourism.
Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said states cannot interfere with the federal government in securing the border. That includes physical structures that the government wants to erect.
“I would think federal power is going to trump that,” she said. “It wouldn’t succeed. They couldn’t stop that.”
California already has a barrier along part of its border with Mexico. Fencing south of San Diego, built in the 1990s, extends 13 miles from the Pacific Ocean. Vaughan said double-layered fencing works best in urban areas, allowing a smaller number of border agents to patrol the area.
“Where it can be patrolled is where they have it,” she said.
A bill requiring a vote of the people in California on Trump’s wall “would be for show and completely pointless,” Vaughan said.
Lawyers at the Immigration Reform Law Institute, the legal arm of the Federation for American Immigration Reform, agree. They point to Supreme Court rulings dating to the 19th century making clear that the federal government can seize land needed to carry out powers granted to it by the Constitution.
Ending local contracting with for-profit companies that run immigration detention centers. This bill would prohibit local governments from contracting with private companies to detain illegal immigrants.
Vaughan said the state cannot stop the federal government from paying sheriffs for space in county jails to hold illegal immigrants or stop companies from housing them on the federal government’s behalf.
“They can’t control that because that’s the federal government’s prerogative,” she said. “That strikes me as a complete nonstarter … They don’t have that authority over the sheriffs.”
County governments can decline immigration-detention contracts, but she said it “would be foolish for them to do that” because such deals are big money-makers.
Defending against a Muslim database. This bill would bar any state agency or department from providing information to the federal government on a person’a religious affiliation if used fora database based on religion.
This seems like something of a red herring since Trump has no proposal for a Muslim database. Although he flirted with the idea earlier in the campaign, his current proposal to combat domestic terrorism involves “extreme vetting” of people coming from certain high-risk countries.
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Some Trump advisers have suggested reinstating a program that existed for several years after the Sept. 11 terrorist attacks requiring immigrants from certain countries to register every 30 days with the Department of Homeland Security as a way to better track foreigners entering on visas. That program never included all Muslims — and certainly not Muslims who were American citizens.
The Immigration Reform Law Institute contends that if the program were reinstated, California could put itself in a position of contradicting the law and expose the state to a lawsuit.
Vaughan questioned what information state and local officials even would have if the federal government asked for it.
“I would hope that the state of California would not have information on people’s religion,” she said. “That, in itself, probably would be illegal.”
Added Smith: “That would be a story on its own, I would think.”
In addition to the pending legislation, immigration advocates have urged state Attorney General Kamala Harris to block federal access to CaliGang, a database of suspected gang members. Advocates argue the list has names of people who are not actually gang members.
Vaughan said proving gang ties is not a condition for deportation as long as it is shown that the person is an illegal immigrant.
The Immigration Reform Law Institute points to provisions of the Illegal Immigration Reform and Immigrant Responsibility Act and the Welfare Reform Act of 1996 that prohibit state and local government from impeding the federal government’s request for information about a person’s immigration status.