The legal struggle over immigrant “sanctuaries” is escalating, and deep-blue California is ground zero.
“This is basically going to war,” Democratic Gov. Jerry Brown said after Attorney General Jeff Sessions announced last week that the Trump administration is suing the state over three recently enacted laws limiting local and state law enforcement cooperation with federal immigration agents.
For the most part, President Donald Trump’s effort to crack down on illegal immigration and so-called sanctuary cities, counties and states has yet to produce results. Multiple courts have blocked his efforts, Congress has struggled to pass legislation that would aid him, and local officials — especially those in California and other Democratic strongholds — are in open revolt.
“I think it’s clear they’ve put a target on the back of California,” said the state’s junior senator, Democrat Kamala Harris. “Maybe because we’ve clearly stated that we’re going to take a more humane approach that’s in conflict with this administration’s approach, which is to target immigrants.”
Watch: How The Senate Immigration Debate Stalled
If Trump’s fortunes change, it could be at the state’s expense. California could see its three landmark sanctuary laws rolled back, meaning more of its undocumented residents could face deportation. And the state could lose millions of dollars in federal funding.
A federal judge on March 5 ruled in Trump’s favor, allowing the Justice Department to withhold from the state — for now, at least — a $1 million grant because of its sanctuary policies. Sessions announced the lawsuit days later, accusing California of using “every power it has to undermine duly established immigration law in America.”
Sessions told an audience of law enforcement officials that the administration would “fight these unjust, unfair and unconstitutional policies” and was confident of winning.
In a separate effort, DOJ has threatened to issue subpoenas to the state and seven cities and counties, including Los Angeles and San Francisco, if each does not hand over documents and other information related to their sanctuary policies.
The rift was on full display in Oakland in February when Mayor Libby Schaaf warned the public about an imminent federal Immigration and Customs Enforcement operation, “not to panic our residents but to protect them,” she said. The raids in Northern California in the following days still resulted in arrests of more than 230 undocumented immigrants, but the administration blamed Schaaf, a Democrat, for helping an additional 800 people evade capture.
“Those are 800 wanted criminals that are now at large in that community — 800 wanted criminals that ICE will now have to pursue by other means with more difficulty in dangerous situations, all because of one irresponsible action,” Sessions said on Wednesday. “So here’s my message to Mayor Schaaf: How dare you?”
Tensions between Trump and California — home to roughly 2.3 million undocumented immigrants, according to the Pew Research Center — have never run higher. The chasm could widen this week, when Trump is expected to visit the state to view prototypes for his proposed wall on the U.S.-Mexico border, which were constructed near San Diego.
As Sessions takes on California’s sanctuaries in court, the Homeland Security Department is responding in its own way: with force.
ICE has promoted other high-profile operations in the state, including a sweep in Los Angeles last May that resulted in the arrests of more than 200 people. But behind the scenes, the agency has been clinical, making more than 6,200 arrests from October through December, the most recent time frame for which data is available. That’s about 16 percent of all arrests nationwide, according to ICE.
Activists have accused ICE of trying to instill fear in immigrant communities, a potent tool in the enforcement plank of Trump’s hard-line immigration platform.
“For the Trump administration to task its ICE officers to go out into these places for political reasons is really appalling,” said David Leopold, a former president of the American Immigration Lawyers Association. “It doesn’t do anything to make the borders more secure or keep felons off the street.”
The majority of the undocumented immigrants arrested have had criminal records, according to ICE.
“They’re doing it in a systematic way, not simply arresting the most illegal aliens they can find,” said Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which advocates tougher enforcement. “If that were all you wanted to do, you’d start cruising by Home Depots and picking up day laborers.”
Thomas D. Homan, ICE’s acting director, has argued that California’s sanctuary jurisdictions make raids necessary. He said sanctuaries like Oakland “force ICE officers to make more arrests out in the community, which poses increased risks for law enforcement and the public.”
Trump’s supporters disagree with the notion that he’s unfairly targeting California.
“I think it’s wrong to describe this as a vendetta,” Vaughan said. “This is a logical, operational response.”
Legal battle ahead
For all the administration’s efforts to stop sanctuary jurisdictions in the courtroom, the coming legal battle could be uncharted territory.
Senior DOJ officials, who briefed reporters on the condition they would not be named, described the Trump lawsuit as novel because the state laws are untested in court.
Two of the statutes limit the degree to which local police may communicate with ICE and what information they may share, including the date on which an undocumented individual is released from jail. The third requires California employers to verify that ICE has a warrant or subpoena before allowing them to check workers’ immigration status.
The government plans to argue that each law defies the Constitution’s supremacy clause, which holds that state laws cannot pre-empt federal ones. Officials said they would likely invoke a 2012 Supreme Court ruling against the state of Arizona, which had passed a set of tough immigration laws deemed by the high court to be in violation of the supremacy clause.
“Just imagine if a state passed a law forbidding employers from cooperating with [the Occupational Safety and Health Administration] in ensuring workplace safety. Or the Environmental Protection Agency, looking for a polluter,” Sessions said.
Rep. Ro Khanna, who represents a district in Silicon Valley, said the attorney general’s view stands in stark contrast to his past positions on states’ rights.
“Here’s what’s so ironic about it: Jeff Sessions used to believe in federalism,” the California Democrat said. “It’s not even an issue of immigration as this is an issue of the balance of power between cities, states and the federal government.”
Brown said Sessions’ characterization of California’s laws “is simply not true.” The governor told reporters that “nothing stops the federal government from coming to a jail. The release records are public. There’s nothing stopping the sheriff [from] working with ICE.”
The Justice Department is seeking a preliminary injunction against the three statutes, a process officials estimate could take a few weeks. Legal experts say the Trump administration’s track record on sanctuary cities doesn’t bode well for the coming legal fight.
“With one exception, every court decision on this has gone against the administration,” said Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School. “I think that trend is likely to continue.”
‘Pure red meat’
The DOJ’s lawsuit served to reignite a hot-button issue as the primary campaign season gets underway. It is likely to further turn California’s Latinos against the Republican Party, a trend that began with mass protests against a 1994 GOP-backed immigration ballot initiative, Proposition 187.
But the state hasn’t been in political play for nearly a decade. Trump’s true aim, his critics argue, is to vilify California in order to fire up his own nativist supporters.
“This is pure red meat for the base,” Brown said.
Immigration hawks have spent years lambasting sanctuary jurisdictions. The debate gained national attention after the 2015 death of Kate Steinle, who was fatally shot in San Francisco by an undocumented criminal with multiple convictions and prior deportations who had previously been in local police custody.
When the man was acquitted of murder earlier this year, Trump took to Twitter to call the verdict “a complete travesty of justice.”
Republicans in Congress have for years sought to force sanctuaries to comply with ICE by threatening to withhold certain federal funds, but have consistently fallen short without substantial Democratic support. Last month, the Senate took up a proposal by Sen. Patrick J. Toomey that would authorize the government to block sanctuary jurisdictions from receiving economic development grants.
The Pennsylvania Republican’s proposal fell six votes short, but it nonetheless exposed the vulnerability of Democratic senators running for re-election in states Trump won in 2016. Four of these Democrats — Debbie Stabenow of Michigan, Joe Donnelly of Indiana, Joe Manchin III of West Virginia and Claire McCaskill of Missouri — voted for the sanctuary proposal.
Even if Trump doesn’t prevail in rolling back California’s statutes, the lawsuit and continued threat of ICE raids are sure to play well with his supporters. Whether the administration wins in court is of little consequence in the political arena.
“If they lose these cases, they’re not much worse off than they were before,” Somin said. “It’s politically advantageous even if they don’t have much success with it.
Kate Ackley contributed to this report.