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California Gov. Gavin Newsom (D) and Florida Gov. Ron DeSantis (R) this week may have achieved the political equivalent to apotheosis, in which mortals achieve God-like stature. Both are legislating soundbites and the voters are loving it. In California, Newsom pledged to re-purpose the Texas “heartbeat law” to limit gun rights. In Florida, DeSantis pledged to use federal COVID funds to send undocumented persons to Delaware, home state of President Joe Biden.
Welcome to the rise of gotcha legislation, where the arguments of the opposing party are used to attack its core issues.
Both proposals face serious legal challenges and likely could not survive as codified soundbites.
Newsom’s gun ‘heartbeat’ law
Newsom tapped into the liberal rage after the Supreme Court refused to enjoin the Texas law that allows people to sue anyone who “aids or abets” an abortion performed after about six weeks. Newsom said that if states can now shield their laws from review by the federal courts by parceling enforcement out to private lawsuits, then “California will use that authority to protect people’s lives, where Texas used it to put women in harm’s way.”
If written as Newsom described, the law would be dead-on-arrival.
First, Newsom limited the law to gun manufacturers, distributors, and sellers — to the exclusion of a wider array of purchasers, or “aiders and abetters.” The Texas law exposed a wide array of people to potential lawsuit; Newsom is targeting companies that will not be as easily intimidated. Second, the Second Amendment expressly protects the individual right to bear arms.
The Texas “heartbeat” law was pushing the long-standing question of limits within the pre-viability period of a pregnancy.
A district court previously struck down a California law barring AR-15s, an order that was later stayed; the issue is currently on appeal.
Before you allow citizen enforcement of prohibitions, you have to establish that the prohibitions themselves are constitutional, as in Texas.
Finally, in the Texas case, eight out of nine Supreme Court justices just voted to allow pre-enforcement challenges. The same would likely be true for the California law. Newsom would force even the liberal justices to vote against California or embrace the same hypocrisy as the governor. Once declared unconstitutional, the California law would return to little more than a soundbite (to quote Macbeth) full of “sound and fury, signifying nothing.”
Nevertheless, some legal experts are applauding Newsom for his cleverness and chutzpah. Jessica Levinson, a law professor at Loyola Law School in Los Angeles, admitted to The Chronicle that Newsom is “one step ahead of where he can go legally,” then added: “He is proposing to use a mechanism that he and many others have vilified. But I think it’s quite smart, right? I think it’s a big ‘F–k you’ to the Supreme Court.”
That is what constitutes “smart law” in the age of rage.
Of course, the justices may not be quite as enamored with the message — or the messenger — as is Professor Levinson.
DeSantis’s ‘tongue in cheek’ immigration relocation law
If Newsom’s bill is a middle finger to the Supreme Court, DeSantis’ bill is the same to the Biden administration. DeSantis’s bill to relocate undocumented persons to Delaware also began as a soundbite: “It’s somewhat tongue in cheek, but it is true,” DeSantis said, “if you sent them to Delaware or Martha’s Vineyard or some of these places, that border would be secure the next day.”
DeSantis wants $8 million to create a new program that would allow Florida to contract with private companies to transport “unauthorized aliens” out of the state.
Here’s the gotcha: DeSantis wants to use the interest accrued from federal funds, including pandemic relief funds.
It is clever, given that Congress handed over hundreds of billions with few limitations.
DeSantis has also pushed legislation to bar state officials from assisting in the federal relocation of undocumented persons into the state — flipping the script on liberal states and cities that barred assistance to ICE in apprehending individuals. The Biden administration has been moving thousands of immigrants around the country by plane and bus. A Florida TV station reported 78 flights have landed in the Jacksonville airport alone between April and October. Most of these immigrants are told to report to an immigration office, and many are not given court dates. They are free to go anywhere in the United States. In that status, they can go to Delaware — and can also be induced to go to Delaware voluntarily by cash payments.
However, the proposed law would likely violate immigration laws and the Constitution if Florida forced immigrants into another state. A federal court could enjoin the program before most immigrants were buckled into their seats.
The most interesting question is whether Delaware could secure an injunction if the law were written as a voluntary relocation program. Since these individuals are free to travel in a non-custodial status, Florida could act by inducement rather than compulsion by offering financial payments to relocate. Delaware or Martha’s Vinyard would then have to argue that such immigrants are equivalent to interstate “dumping” cases or somehow violate federal authority. These would be deeply insulting to invoke in an immigration context. It would be the inverse of Chemical Waste Management, Inc. v. Hunt, in which the Court struck down an Alabama law imposing a fee on all interstate waste coming into the state under the Dormant Commerce Clause. The Court ruled that “no state may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate trade.”
Florida might not be imposing a fee, but rather offering a benefit for the movement of undocumented persons to Delaware. Those people are not forms of pollution, but rather people free to move around the United States under federal law. That could trigger a tit-for-tat of such state laws, but a court could view that as a political question.
In the end, however, it is distinctly possible that these gotcha laws will not move a single person or gun out of their respective states.
They will, however, thrill supporters and throttle opponents in the blood sport of American politics.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.