LOS ANGELES, Calif. (Oct. 13, 2019) – Yesterday, Gov. Gavin Newsom signed a bill to prohibit civil arrests at courthouses in an attempt to bar Immigration and Customs Enforcement (ICE) from scooping up immigrants in court.
Introduced by Asm Rob Bonta and five Democrat cosponsors, Assembly Bill 668 (AB668) provides that “a person shall not be subject to civil arrest in a courthouse while attending a court proceeding or having legal business in the courthouse..”
The new law also seeks to empower a judicial officer “to prohibit activities that threaten access to state courthouses and court proceedings, and to prohibit interruption of judicial administration, including protecting the privilege from civil arrest at courthouses and court proceedings..”
California Chief Justice Tani G. Cantil-Sakauye has publicly criticized the practice and has directly asked the Trump administration to stop. ICE has said it has no plans to stop arrests in courthouses.
A similar bill passed the California Legislature in a previous legislative session, but was vetoed by outgoing-Gov. Jerry Brown, who said while he supported the purpose of the bill, he worried signing it could have “unintended consequences.”
RAISING THE STAKES
AB668 is seen by many supporters as a follow up to the recently enacted “California Values Act,” a 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 five 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 AB668 raises the stakes beyond a passive refusal to assist to a potential prohibition on the activity of federal agents.
ENFORCEMENT
Questions about enforcement remain under the new law, which empowers judicial officers to “compel obedience to the officer’s lawful orders as provided in this code.”
“Are they expecting a judicial officer of the state to arrest an ICE agent?” asked Michael Maharrey, communications director for the Tenth Amendment Center. “When push comes to shove, will California agents try to physically prevent federal agents from doing what they intend to do, that is the ultimate question here.”
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 AB668 will be enforced going forward. It goes into effect on Jan 1, 2020
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