The U.S. Department of Justice amped up its fight last week against so-called sanctuary jurisdictions, suing California for three state immigration laws that it says violate federal statutes. It's the Trump administration's most direct challenge to sanctuary policies so far.
Before the lawsuit was announced, White House officials reportedly told the media that California may just be the first state to be sued over its immigration laws.
More than 300 jurisdictions -- including seven states -- have policies that qualify them to be a sanctuary for immigrants, according to the anti-immigration Center for Immigration Studies. (Several of these places, it should be noted, do not self-identify as sanctuaries, and many of their laws don't go as far as California's protections.)
“All of these [sanctuary] laws are written so differently, it will be hard to strike down different state laws with one California ruling, although that could happen,” says Alyson Sincavage, a senior legislative associate at the American Immigration Lawyers Association.
But if the Trump administration wins in California, "it may give the administration incentive to go after other parts of the country," she says.
At issue in the lawsuit are three California laws that effectively protect undocumented immigrants from deportation. Two of them are unique to California, but one of them has been adopted by several other states and localities, potentially placing them in the Trump administration's legal crossfire.
The laws not found in any other state are A.B.103 and A.B. 450, which legal experts agree are also most likely to be at least partially struck down in court. The first requires state monitoring of conditions at federal immigration detention facilities and the latter instructs employers to keep federal Immigration and Customs Enforcement (ICE) agents out of private workplaces unless they have a warrant.
S.B. 54, on the other hand, is a much more common type of sanctuary law. Among other things, S.B. 54 prevents local law enforcement from notifying ICE about an inmate’s release and from detaining an inmate for federal immigration authorities, unless that inmate has committed a serious crime.
"It’s one of the most common types of sanctuary laws to restrict what law enforcement and prison officials can do to cooperate with ICE," says Mary Fan, a professor at the University of Washington Law School.
But Grisel Ruiz, staff attorney at the Immigration Legal Resource Center, notes that S.B. 54 is "the most comprehensive law of its kind in the nation. There are other laws that get at portions of what S.B. 54 does, but none as comprehensive."
Regardless, Fan says S.B. 54 and laws like it will be more difficult for the federal government to scrap.
“If [the DOJ’s challenge against S.B. 54] were somehow validated, it would have the largest implications across the country. But the DOJ’s lawsuit is also weakest on this challenge,” she says.
That's because Supreme Court precedent affirms that the federal government cannot “commandeer” state governments, meaning it cannot impose “targeted, affirmative, coercive duties upon state legislators or executive officials.”
What's more, federal courts across the country have upheld challenges against the practice of detaining immigrants for ICE, forcing some states and localities to institute laws that ban the practice. Massachusetts is one such state, and Rhode Island is another.
Still, Fan warns, a federal victory over A.B. 103 and A.B. 450 wouldn’t be without consequences for the rest of the country.
“Sanctuary jurisdictions are still deciding what policies to adopt. If a court rules against [these two laws], it’s still a ‘keep out’ sign,” she says.
She points to "concerns that people’s friends and neighbors are being kept in facilities with very poor conditions. You could see sanctuary jurisdictions being interested in legislating this area." But, she says they would be more hesitant to if the White House wins this case.
Since President Donald Trump’s election in 2016, more states and localities across the country have passed laws meant to direct state resources away from immigration enforcement. The governors of Washington and New York, for instance, both signed executive orders last year that not only prevent local law enforcement from arresting people solely for immigration-related offenses but also restrict state agencies from asking about people's immigration status.
But neither of these orders have the breadth of California’s S.B. 54, and they are carefully written to avoid legal trouble. Washington’s, as Fan points out, is full of “savings clauses,” like “except as required by federal law,” meant to fend off questions about federal preemption.
Illinois also passed a sanctuary law last year, which prevents law enforcement from directly detaining people on behalf of ICE and prohibits local officials from asking about immigration status.
Oregon has been considered a sanctuary state for more than 30 years, with policies that prohibit the use of state money for immigration enforcement when the immigrant in question has not committed a crime.
Both Oregon and Illinois (as well as California) were threatened with a subpoena from the DOJ for documents proving they are not violating federal immigration laws. If S.B. 54 is struck down in court, these other state laws could be susceptible to challenges.