Metropolitan News-Enterprise


Friday, April 19, 2019


Page 1


Ninth Circuit:

One Portion of Anti-Sanctuary Act Creates Unlawful Burden

Denial of Preliminary Injunctions as to Three Challenged California Acts Affirmed, Except as to Portion of AB 103 Which Mandates State Inspections of Immigration Detention Facilities


By a MetNews Staff Writer


The Ninth U.S. Court of Appeals, while rejecting the bulk of challenges by the federal government to California sanctuary laws—including a bar on law enforcement officers cooperating with federal authorities except in specified circumstances—yesterday struck down one provision in AB 103 that, a three-judge panel said, breaches the doctrine of intergovernmental immunity.

Circuit Judge Milan Smith wrote the opinion which, for the most part, affirms District Judge John A. Mendez’s denial of preliminary injunctions sought by the United States in its challenge to three statutes.

Mendez, of the Eastern District of California, was reversed with respect to his decision not to block a requirement created by AB 103—codified as Government Code §12532(b)(1)(C)—that the state attorney general periodically inspect “facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California.” The purpose of the inspections is to uncover possible due process violations in government and private facilities with which the federal government contracts.

The Legislature, in approving AB 103—authored by Assembly member Ricardo Lara, D-Bell Gardens—appropriated $1 million to fund inspections over a 10-year period.

Minimal Burden

Mendez acknowledged that the statute “imposes a review scheme on facilities contracting with the federal government, only” but said “the burden placed upon the facilities is minimal.”

Smith declared in yesterday’s opinion:

“[W]e are not prepared to recognize a de minimis exception to the doctrine of intergovernmental immunity. Any economic burden that is discriminatorily imposed on the federal government is unlawful.”

The jurist said Mendez properly denied a preliminary injunction with respect to those portions of AB 103 which merely impose the same requirements on immigration detention facilities that are already imposed on state and local facilities.

Other Statutes

The opinion also affirms Mendez’s denial of a preliminary injunction to block implementation of AB 450, which requires employers to warn employees of federal inspections, and SB 54, which Smith termed “the most contentious of the three challenged laws.”

Smith wrote:

“The district court did not abuse its discretion when it concluded that AB 450’s employee-notice provisions neither burden the federal government nor conflict with federal activities, and that any obstruction caused by SB 54 is consistent with California’s prerogatives under the Tenth Amendment and the anticommandeering rule.”

SB 54

SB 54, authored by then-Senate member Kevin De León, renders California a virtual sanctuary state, restricting law enforcement cooperation with immigration officials. It is known as the “California Values Act.”

The U.S. Department of Justice expressed particular concern over the bill’s creation of Government Code §7284.6(a). It provides that “California law enforcement agencies shall not…(4) Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with §7282.5.”

Sec. 7282.5 permits a transfer where the person has been convicted of certain enumerated crimes.

Impedes Federal Officers

“We have no doubt that SB 54 makes the jobs of federal immigration authorities more difficult,” Smith said.

He went on to say, however, that “[e]ven if SB 54 obstructs federal immigration enforcement, the United States’ position that such obstruction is unlawful runs directly afoul of the Tenth Amendment and the anticommandeering rule.”

The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The “anticommandeering rule” bars the federal government actions from coercing states into taking acts they would otherwise not take.

Smith reasoned that “invalidating SB 54 would not prevent obstruction of the federal government’s activities” because the Immigration and Nationality Act “does not require any particular action on the part of California or its political subdivisions.” He explained:

“Federal law provides states and localities the option, not the requirement, of assisting federal immigration authorities. SB 54 simply makes that choice for California law enforcement agencies.”

AB 450, dubbed the “Immigrant Worker Protection Act,” was authored by Assembly member David Chiu, D-San Francisco. It prohibits public and private employers from consenting to inspections by immigration officials, requiring a search warrant, and mandating posted notification to employees.

 Smith said the federal governments argument “extends intergovernmental immunity beyond its defined scope,” setting forth:

[T]he mere fact that the actions of the federal government are incidentally targeted by AB 450 does not mean that they are incidentally burdened, and while the latter scenario might implicate intergovernmental immunity, the former does not.”

Concurring were Circuit Judges Paul Watford and Andrew Hurwitz.

The California Department of Justice yesterday issued a press release with the heading, “Attorney General Becerra Secures Victory in USA v. California.” It quotes Becerra as saying:

“As much as all the attention is on whether Donald Trump obstructed justice, we continue to prove in California that the rule of law not only stands for something but that people cannot act outside of it. The Ninth Circuit ruled in our favor today, demonstrating that the rights of states and the 10th Amendment continue to thrive.”

The case is United States v. State of California, 18-16496.


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