Justice Department Files Preemption Lawsuit Against the State of California to Stop Interference with Federal Immigration Authorities

In a speech to the California Peace Officers' Association’s Legislative Day, Attorney General Jeff Sessions today announced that the Justice Department has filed a legal action against the State of California, Governor of California Jerry Brown, and Attorney General of California Xavier Becerra, seeking both declaratory and injunctive relief based upon the enactment and implementation of certain provisions of three California laws—Assembly Bill 450 (AB 450); Senate Bill 54 (SB 54); and Assembly Bill 103 (AB 103)—which intentionally obstruct and discriminate against the enforcement of federal immigration law. The complaint contends that the laws in question are preempted by federal law and impermissibly target the Federal Government, and therefore violate the Supremacy Clause of the United States Constitution. As a result, the Justice Department is seeking to permanently enjoin these state statutes, which are contrary to federal law and interfere with federal immigration authorities’ ability to carry out their lawful duties. In addition, the Justice Department is continuing to review other related California enactments.

The complaint, accompanying motion for a preliminary injunction, and declarations from Department of Homeland Security and Department of State officials—filed last evening in the Eastern District of California—spell out in detail the extent to which each of these laws have interfered, and will continue to interfere, with federal law enforcement efforts.

AB 450 prohibits private employers from voluntarily cooperating with federal immigration officials—including officials conducting worksite enforcement efforts and other enforcement operations. It also requires that private employers notify employees in advance of a potential worksite enforcement inspection—despite clear federal law that has been on the books for approximately three decades that has no such requirements. An April 22, 2017, report on AB 450 compiled by the California State Assembly’s Committee on Judiciary states that the law is designed to frustrate “an expected increase in federal immigration enforcement actions.” California has demonstrated its intent to enforce this law: on Jan. 18, 2018, California Attorney General Becerra issued a warning to employers in the state that his office would “prosecute those who violate [AB 450] by voluntarily cooperating with Immigration and Customs Enforcement (ICE) efforts.” Additionally, failure to comply with AB 450 could result in a fine for the business owner ranging from $2,000-$10,000. California employers are thus caught between what many may feel is a civic duty to cooperate with the enforcement of federal law, and a state government that penalizes such lawful cooperation.

SB 54 restricts state and local law enforcement officials from providing information to federal immigration authorities about the release date of removable criminal aliens who are in their custody. These criminal aliens are subject to removal from the United States under federal immigration law, and SB 54 interferes with federal immigration authorities’ ability to carry out their responsibilities under federal law. SB 54 also violates 8 USC 1373, a law enacted by Congress, which promotes information sharing related to immigration enforcement. The state law also prohibits the actual transfer of criminal aliens to federal custody, which creates a dangerous operating environment for ICE agents executing arrests in non-custodial settings. In a declaration provided to the Court, ICE Deputy Director Thomas Homan states that these “at-large arrests. . .unquestionably involve a greater possibility of the use of force or violence by the target . . . and have greater access to weapons, exposing officers, the public, and the alien to greater risk of harm.”

Remarkably, with this law California attempts to shield from federal law enforcement removable criminal aliens who have committed crimes in the state of California and across the country. In doing so, California is releasing onto its streets those removable criminal aliens who have already shown a willingness to engage in criminal activity—as evidenced by their state or local detention for violating state law—and who therefore are most likely to commit crimes in the future.

AB 103 imposes a state-run inspection and review scheme of the federal detention of aliens held in facilities pursuant to federal contracts. This includes review of immigration processes and the circumstances in which aliens were apprehended, and also requires access to privileged federal records that are under ICE’s control. With this law, California is trying to regulate federal immigration detention, which it cannot do under the Constitution. California does not impose such an inspection and review scheme on other similar detention facilities that do not house civil immigration detainees—in other words, this is a special review regime that applies only to facilities that house civil immigration detainees. This different treatment shows that California is seeking to regulate the federal government, which is not permitted under well-established Supreme Court precedent.

“The Department of Justice and the Trump Administration are going to fight these unjust, unfair, and unconstitutional policies that have been imposed on you,” Attorney General Jeff Sessions today told law enforcement officers attending the California Peace Officers Association’s 26th Annual Law Enforcement Legislative Day, referencing AB 450, SB 54, and AB 103. “We are fighting to make your jobs safer and to help you reduce crime in America. And I believe that we are going to win.”

“Our duty at the Department of Homeland Security is to enforce and uphold the nation’s security laws as passed by the U.S. Congress and signed by the President,” said Secretary Kirstjen M. Nielsen for the Department of Homeland Security.  “California has chosen to purposefully contradict the will and responsibility of the Congress to protect our homeland. I appreciate the efforts of Attorney General Jeff Sessions and the Department of Justice to uphold the rule of law and protect American communities.”