Below is my column in the Hill newspaper on the new California law that the state Attorney General is pledging to enforce against employers who are cooperating with federal immigration authorities. There are ample grounds for either businesses or the federal government or both to bring a legal action. The arguments of California in Arizona v. United States — and the holding in that case — could prove damaging to the position of the state.
In 2012, California politicians and activists rallied across the country to call upon the U.S. Supreme Court to strike down an Arizona law enforcing federal immigration laws. They argued that such a measure is clearly preempted by federal law, which should solely dictate immigration policy. The Supreme Court in Arizona v. United States ultimately struck down parts of the law at the behest of the Obama administration.
Now, just six years later, it is California that has passed a law obstructing federal enforcement. Advocates are now insisting that California’s Immigrant Worker Protection Act must stand despite ordering businesses not to cooperate with federal enforcement. To prevail, the Supreme Court would have to issue a seemingly conflicted ruling that, while Arizona’s law assisting in immigration enforcement was unconstitutional, it is perfectly constitutional for California to pass a law inhibiting such enforcement.
This month, California Attorney General Xavier Becerra issued a warning to California employers that they could face prosecution, including fines up to $10,000, if they assist the federal government in its efforts to identify or apprehend illegal immigrants. Becerra threatened that if employers “voluntarily start giving up information about their employees or access to their employees in ways that contradict our new California laws, they subject themselves to actions by my office.” He added that the state “will prosecute those who violate the law.”
The law, signed by Gov. Jerry Brown last year and activated on Jan. 1, prevents employers from cooperating with federal authorities. These limitations include provisions requiring employers to demand a warrant before granting them access to a worksite, preventing employers from voluntarily sharing confidential employee information with federal authorities without a subpoena, requiring employers to notify their workers before any federal audit of employee records, and prohibiting employers from re-verifying information on employment verification forms, unless compelled to by federal law.
For the feds, the law reads a lot like “snitches wear stitches.” Employers are expected to stay mum when federal officials come calling. While past “sanctuary laws” bar government officials and law enforcement from cooperating with federal immigration officials, this law bars private citizens from doing so. Thus, an employer or homeowner can always voluntarily cooperate with police in waiving the need for a warrant. Indeed, most citizens agree to allow agents to conduct a search or inspection to show that they are in compliance with federal law. Now, however, California will prosecute those who elect to grant entry to law enforcement without a warrant.
In fairness to California, its brief opposing Arizona’s law in 2012 did acknowledge that states retained the right to pass immigration laws “regulating civil rights, consumer protection, or workplace safety for all persons in the state.” However, California told the court that any state interference with federal policies of removal is strictly unconstitutional as an interference with federal priorities and policies. The brief insisted that “removal’s inherently national character extends to enforcement activities in aid of removal, such as arrest and detention and “such enforcement inevitably targets foreign nationals” and rests solely with the federal government.
Indeed, California argued that a “patchwork of separate removal policies would undermine ‘the nation’s need to ‘speak with one voice’ in immigration matters.’” Thus, California argued that the Court should not allow a state to “interfere with the achievement of the federal priorities that Congress has set” and Arizona should be blocked on the ground that its law “conflicts with Congress’s national removal policy.” The person who signed that brief for California was Kamala Harris, then California’s attorney general and now the state’s junior U.S. senator.
The Framers had particular concern over the actions of border states and how their laws or actions might impact foreign relations. In Federalist No. 3, John Jay wrote that the “neighborhood of Spanish…territories, bordering on some states and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering states, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury” are the most likely to be pulled into conflicts with international implications. Jay was specifically referring to the potential for armed conflicts with foreign nations, but the concern was that border states will have the greatest interest in interfering with federal policies concerning border issues and foreign relations.
Under California’s law, an employer is subject to prosecution if he or she wants to cooperate with the federal government and allow such things as a warrantless entry. It also limits information sharing and requires a “heads up” for undocumented workers that federal officials are looking at their status, a warning that is likely to cause many to bolt.
There are legitimate issues over the federal government requiring state police to hold a person without a warrant. However, the Immigrant Workers Protection Act moves far beyond any prior incursion into federal immigration enforcement. Notably, California politicians like Harris have objected to the federal government making demands on state officials to enforce immigration laws. But this law forces private citizens to hamper federal enforcement. It effectively tells employers to choose between the federal and state governments, including ordering them to take actions that would directly undermine federal enforcement.
Becerra and California have put private businesses and citizens in the path of federal enforcement. U.S. Attorney General Jeff Sessions is unlikely to be deterred by the involuntary conscription of private businesses as a barrier to enforcement. There is a long-standing adage that “hard cases make bad law.” California may have just handed Sessions a golden opportunity to curtail the Golden State.