Trump’s Lawsuit against California and state laws that “discriminate against the United States”

In my first post, I compared the current conflict over sanctuary jurisdictions to fugitive slave rendition and argued that federal enforcement efforts in both proved counterproductive by triggering grassroots and state-level backlash.  In this post, I would like to dive into a specific constitutional issue raised by the Trump Administration’s lawsuit against California’s sanctuary laws.

The complaint alleges that California's laws violate the Supremacy Clause by conflicting with and “discriminating against” federal immigration law.  Within the last few days, Rick Hills and Ilya Somin have engaged in an interesting debate over whether a state law that discriminates against federal law or law enforcement is unconstitutional.  Rick Hills argues that state laws that place special burdens on federal officers are unconstitutional, while Ilya Somin contends that no such principle exists.

This is an important debate, because California’s sanctuary laws arguably discriminate against federal law.  SB 54 forbids state officers from sharing information only with federal immigration officers, HB 103 requires the state to inspect only federal immigration detention facilities, and AB 450 forbids private employers from voluntarily cooperating with federal immigration raids.

Unlike Somin, I think an antidiscrimination principle exists.  However, I believe it is much more limited than Hills indicates. After the fold, I contend that the antidiscrimination principle should be limited to two situations: (1) state court discrimination against federal law; and (2) state discrimination that satisfies the traditional test for conflict preemption by creating obstacles to federal policy. Under the anti-commandeering principle of Printz, however, state law that discriminates against federal law by withdrawing state assistance should be constitutional.  Any problems raised by excessive discrimination can be addressed through conflict preemption or other constitutional provisions, such as the Privileges and Immunities Clause.

Precedent.  Precedent supports a limited antidiscrimination principle in at least two situations. First, Howlett v. Rose (1990) and many other cases hold that the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” In other words, state courts must apply federal law and cannot discriminate against federal causes of action.  A state court violates the Supremacy Clause if it decides to follow a state rule over an applicable federal one. This principle is limited to state courts and thus does not apply to the California legislation.

Second, state laws that discriminate against the federal government violate the Supremacy Clause when they violate traditional conflict preemption principles by creating obstacles to federal policy.  As the Court in North Dakota v. United States explains, “The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government.” A state law that singles out the federal government and imposes burdens (like a tax) would be invalid under conflict preemption because it would create an obstacle to the federal policy. 

Printz, however, teaches that state laws withdrawing assistance to the federal government are different. Printz was based on the need to preserve state autonomy by allowing the states to spend their resources on their own priorities rather than those of Washington. For Printz to make sense in light of cases like North Dakota, there can be no preemption for a state law that discriminates against federal policy by withdrawing federal assistance. The baseline (to borrow from Hills) should be state inactivity, with the federal government creating and enforcing its own policy. If the state withdraws assistance, the state law (even if discriminatory) should not be preempted because it does not create an obstacle to federal policy. Instead, it would remove a state benefit and return the situation to the baseline. However, if the state affirmatively creates an obstacle—say by imposing a tax or burdensome regulation only on federal activities—then conflict preemption kicks in. This may sound overly formalistic, but so is constitutional law at times.   

Hills acknowledges the tension between the antidiscrimination principle and Printz. To prevent the non-discrimination principle from undermining Printz, he suggests allowing the states to discriminate against federal law only in the regulation of their own property, funds, and personnel. Although this would make the non-discrimination principle consistent with Printz, it would also seem to totally unmoor the principle from North Dakota, Davis, or any other precedent I have found. A much easier solution—and one that is fully supported by the precedent—is to limit the non-discrimination principle as described above. 

Constitutional History.  As I explained in my last post, the closest historical parallels to sanctuary legislation I can think of are the personal liberty laws of several northern states that withdrew state assistance in the recovery of fugitive slaves. Generally speaking, these laws prohibited the use of state jails for alleged fugitives, prohibited local law enforcement from aiding in the recovery of fugitives, and/or imposed penalties for kidnapping free men. Although most northerners were not willing to violate the law to save fugitive slaves, the personal liberty laws passed because many northerners thought they were constitutional. Of course, many others thought these laws were unconstitutional, but that was typically because they were thought to violate the Fugitive Slave Clause of the Constitution. The personal liberty laws clearly discriminated against federal law and law enforcement, but they did so by withdrawing state assistance.

Constitutional Structure. The structure of the Constitution shows a strong commitment to and reliance on state sovereignty.  For the states to be sovereign, they must be able to make choices that differ from those of the federal government, and they should not be forced to pretend to support federal policy. Allowing the states to discriminate against federal law is sometimes necessary to allow this to happen. Refusing to cooperate with ICE allows California to distance itself from unjust immigration policy, just as noncooperation on fugitive slave rendition distanced northern state governments from enforcement of the Fugitive Slave Act. California enacted sanctuary policies precisely because federal policy makes local residents equate state law enforcement with federal policy.

Text.  As Somin points out, there is no textual basis for a robust antidiscrimination principle.  Although the Supremacy Clause supports traditional preemption doctrine, it says nothing about state laws that treat the federal government or its officers differently.

Policy. Because a robust antidiscrimination principle would undermine state autonomy, letting the states discriminate against federal law is a good thing if you think federalism is a good thing.  I think the Trump Administration is showing liberals something that conservatives have believed for a long time now—federalism is an important check against the abuse of federal power.

However, Hills offers the following hypothetical:

Imagine that California enacted a law requiring state courthouses to impose much more time-consuming TSA-style security checks only on federal officers, requiring federal officers (but no one else) to take off their shoes and take their laptops out of their briefcases before walking through the metal detector to enter the state courthouse. I assume that creating such a special procedure only for the feds would violate the Supremacy clause even though the California legislature would certainly be free to impose such enhanced security on everyone in a non-discriminatory way. Because the discrimination would manifestly serve only the goal of harassing the feds and impeding the execution of federal law, it attacks federal supremacy just as surely as if California had forced the federal officers to pay a special “federal employee fee” whenever they entered state-owned buildings.

I agree that allowing a state to do this would seem odd.  But that doesn’t mean this hypothetical presents a Supremacy Clause problem. In this hypothetical, the state has not challenged the supremacy of federal law.  Instead, the state has discriminated against federal office holders.  Wouldn’t this violate the Due Process or Privileges and Immunities Clause of the 14^th Amendment (or perhaps even Article IV)? In the Slaughterhouse Cases, the Court said that federal office holding was a privilege or immunity of U.S. citizenship.

Moreover, as Somin points out, there are things the federal government could do to dissuade the states from many types of discrimination, and bad policy is not always unconstitutional.

Application to California’s Legislation:

Under my narrow reading of the antidiscrimination principle, it does not apply to SB 54 or HB 103. These laws do not impose burdens on the federal government or tell state courts to ignore federal law or causes of action. SB 54, which prohibits state law enforcement from sharing information with ICE, is the type of withdrawal of assistance authorized by Printz. After the law went into effect, the situation returned to the baseline of the federal government enforcing federal law on its own.  SB 54 does not interfere with this baseline.  This makes sense, because Printz implies that California should be able to distance itself from federal immigration policy to preserve state sovereignty and ensure accountability. And, because HB 103, which singles out federal immigration detention centers for inspections, will only stand as an obstacle to illegal federal enforcement of immigration laws, it is also hard to see how it is preempted. The law interferes with the baseline of wholly federal enforcement only when state inspections show that federal detention is illegal. Although HB 103 discriminates against federal detention centers, it is difficult to see why such discrimination should be seen as problematic.

AB 450, however, is arguably very different. AB 450 forbids private employers from voluntarily cooperating with federal immigration raids. The state is not simply withdrawing assistance; instead, it is commanding others not to assist. This is exactly the type of discriminatory state law that may be preempted under traditional conflict analysis.

Comments

[Jeff]

I would like to clarify my position on HB 103. Under this provision, the California AG is required to inspect state and private facilities where immigrants are detained by federal authorities. In a sense, this discriminates against federal law, because it imposes a burden (inspections) on the detention of people awaiting federal immigration hearings. And, HB does not withdraw state assistance, so, unlike SB 54, it is not saved by Printz's anticommandeering rule. My point in the post was that the state inspection of facilities would probably not pose an obstacle to federal law and thus would not qualify for conflict preemption. This is because I would assume that the inspection would only burden federal immigration enforcement if the inspection turned up something wrong, like unlawful detention. I am making some assumptions here on HB 103 though, so I welcome feedback in the comments.

[Deep State Special Legal Counsel]

Cap N Trade, Common Core and on and on. Hypocrites.