LOS ANGELES, Calif. (Jan. 10, 2018) – Yesterday, a California Senate committee passed a bill that would ban federal immigration officers from schools and state buildings unless they have a warrant. But questions remain on how the state could enforce it should it become law.
Introduced by Sen. Ricardo Lara (D-Bell Gardens) and 16 co-sponsors, Senate Bill 183 (SB183) “would prohibit federal immigration enforcement agents, officers, or personnel from entering a building owned and occupied, or leased and occupied, by the state, a public school, or a campus of the California Community Colleges, to perform surveillance, effectuate an arrest, or question an individual therein, without a valid federal warrant.”
Yesterday, the Senate Public Safety committee passed the bill by a vote of 5-2.
RAISING THE STAKES
Seen by many supporters as a compliment to the recently enacted “California Values Act,” a new law that opponents refer to as the “sanctuary state” bill.
Under a long-standing legal doctrine known as the “anti-commandeering doctrine,” the federal government is not authorized to require states or local governments to help implement federal acts or regulatory programs. Although its origins come from James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” the doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US (1997) serves as the cornerstone. In it, Justice Scalia wrote for the majority:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
Additionally, in the 1842 Prigg v. Pennsylvania case, the Court held that while the federal Fugitive Slave Act could not be physically impeded by states, they simply weren’t required to help the federal government capture runaway slaves and return them to bondage in the South.
The California Values Act puts this doctrine into practice by banning state and local governments from providing material support or resources to the enforcement of federal immigration law in most situations. But SB183 raises the stakes beyond a passive refusal to assist through an active prohibition on the activity of federal agents.
“Courthouses, schools and other state offices are a refuge for millions of the most vulnerable Californians, and immigrants should not be afraid to come to court or take their children to school,” Lara said in a written statement to the Sacramento Bee last fall.
However, SB183 contains no mechanism for enforcement, and the question remains as to how Lara or his cosponsors intend to ensure federal compliance with the state law.
“Are they planning on suing every federal immigration agent who doesn’t follow California restrictions on their activity, or are they hoping that local law enforcement will arrest them” asked Michael Maharrey, communications director for the Tenth Amendment Center. “They should expect federal agents to merely ignore this should it pass as law, as the federal government has long-held the position that while states don’t have to participate in federal enforcement actions, they can do nothing to physically impede them, even in cases where federal agents admitted to committing crimes while doing so,” he continued.
While Barack Obama was president, a number of republican state legislators took a similar approach on issues important to their conservative politics. Bills were introduced to criminalize federal agents attempting to enforce the Affordable Care Act, environmental regulations and more. All were quickly voted down or were never even given a committee hearing. More notably, however, Missouri Senate Bill 613 (SB613) sought to ban the use of state resources to enforce federal gun control measures in 2014. It passed both houses, but provisions in the bill that included criminal charges for federal agents caused significant backlash and ultimately resulted in the bill failing to pass into law.
It remains to be seen how SB183 will be received going forward.
SB183 now moves to the full Senate for debate and further consideration.