Blackman and Shapiro on California’s Sanctuary Laws in the WSJ

Josh Blackman and Ilya Shapiro have an excellent editorial in the Wall Street Journal this morning: Testing California’s Sanctuary Laws.  They argue that state resistance to unpopular federal policies has a long history and is permissible if kept “within the bounds of federalism.” I agree with this and almost everything else in the article.

For those of you who can’t get past the WSJ’s paywall, they contend that CA’s law prohibiting state officers from sharing information with federal authorities is constitutional under Printz’s anticommandeering rule. They further argue that CA’s law forbidding private employers from voluntarily cooperating with federal immigration raids is probably unconstitutional because it “interferes with federal law.”  I agree.

I am less sure about their analysis of CA’s inspection law.  This law requires California’s AG to inspect all detention facilities “in which noncitizens are being housed or detained,” including those run by the federal government or its contractors. Blackman and Shapiro argue that “Targeting federal agents for heightened scrutiny violates the so-called intergovernmental immunity doctrine.”  They explain:

Through his state’s novel regime, California Attorney General Xavier Becerra isn’t merely inspecting federal facilities in a neutral and consistent fashion, but, according to the federal government’s complaint, has “demanded access to various private documents respecting the ‘welfare of persons detained’ ” by the feds. To the extent that California is imposing additional burdens on federal immigration facilities—and no other federal properties—this second sanctuary law is unconstitutional.

After the fold, I argue that CA’s inspection law should not be found to violate the intergovernmental immunity doctrine. 

In my last post, I argued that there is no freestanding rule against state laws that discriminate against the federal government or its agents.  Although I did not mention the “intergovernmental immunity doctrine” cited by Blackman and Shapiro, the discrimination issue is one and the same.

Under the “intergovernmental immunity doctrine,” the state cannot regulate the federal government directly or discriminate against it.  In North Dakota v. Davis, however, the Court explains that the state law “cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory with regard to the economic burdens that result. Claims to any further degree of immunity must be resolved under principles of congressional pre-emption.” This language could be read to hold that, while discriminatory economic burdens on the federal government are invalid, all other forms of discrimination must be analyzed under normal principles of preemption. I have found very few other cases on point.   

The intergovernmental immunity doctrine—which is called the intergovernmental tax immunity doctrine in Davis v. Michigan and most law relevant law review articles—is typically applied to economic burdens imposed on the federal government or its officers. The doctrine originated in McColluch v. Maryland, which held that Maryland’s tax on the Bank of the US was unconstitutional. Justice Marshall explained that, because “the power to tax involves the power to destroy,” the state tax unconstitutionally interfered with the Bank of the US.  Modern cases hold that state taxes that discriminate against the federal government or its officers amount to indirect taxes on the federal government. 

There is good reason to think that economic burdens should be treated differently.  As Justice Marshall explained in McCulloch, a state cannot tax the entire nation. Doing so would amount to a tax on people beyond the reach of the state’s jurisdiction and sovereign power.  When a state places an economic burden on the federal government, it also necessarily creates an obstacle to federal policy.

Because CA’s inspection law is not a tax and presumably does not impose an economic burden, I think it should be viewed under traditional preemption doctrine. In other words, the fact that the inspection law applies only to people held pursuant to federal immigration law should not necessarily make it unconstitutional.  Instead, we should ask whether it actually creates an obstacle to federal policy.

The CA law seeks to ensure that non-citizens detained in CA are held under lawful conditions.  Is this an obstacle to federal immigration law?  Assuming that the inspections are not themselves burdensome, I tend to think the answer is no.

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[Deep State Special Legal Counsel]

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