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Investigating federal officials to see whether they are violating federal constitutional norms is something in which states do indeed have “a lawful interest.” (Note that in my discussion of the IWPA above, it was crucial to my prediction that the feds should win that the feds were within their constitutional power in enforcing the immigration laws in the workplace.)None of this is to say AB 103 is necessarily valid.At this point, I think two key questions need to be explored.
The federal government objects to such inspections, asserting: (1) that state law singles out these immigration detention facilities for inspection, and does not provide for similar inspection of facilities that are not related to immigration enforcement; and (2) California “has no lawful interest in investigating federal law enforcement efforts.” I think the federal government’s instinct here is wrong, or at least overstated, on both counts.(As an aside, I should note that the issue has generated some conflicts as well; for example, some less liberal cities in solidly blue states have tried to politically distance themselves from state sanctuary policies.) Moving from political rhetoric to constitutional law, a lawsuit filed by the Trump administration against the State of California earlier this spring helps bring into relief the legal stakes in the sanctuary battles.But even as the lawsuit seeks to attach some legal flesh onto the political bones of the dispute, the litigation also highlights two recurring problems with the debate so far: (1) the term “sanctuary” is too broad, as a legal matter, insofar as it is used as an umbrella to cover many state and local actions that are very different (legally speaking) from one another; and (2) the legal positions advanced by the federal administration and ambitious states like California are both too extreme and doctrinally untenable.First, with respect to the private detention facilities, are the state inspections in any meaningful way interfering with the ability of the facilities to assist the feds in enforcing federal law?(See the IWPA discussion.) And second, as to the local-government-run detention facilities, exactly what do the terms of the agreements with the DHS/ICE provide about what kinds of state-level inspection activity are or are not anticipated? State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from [maintaining,] sending to, or receiving from, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”But as I have written extensively on this website and more elaborately in law review scholarship, federal commands for information sharing in this realm very likely run afoul of the anti-commandeering principle embodied in the Tenth Amendment and applied in , a 1997 Supreme Court case holding that the federal government could not require state and local law enforcement officers to conduct background checks on gun purchasers as part of the implementation of a federal law (the Brady gun control law).
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