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Thread: Article: California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional By Cyrus Mehta

  1. #1

    Article: California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional By Cyrus Mehta

    California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional


    The Trump administration has ramped up its ire against California by filing
    a lawsuit against three different California laws that aims to protect
    immigrants from the harsh effects of federal enforcement. The three laws
    are the Immigrant Worker Protection Act, which regulates the way private
    employers can respond to federal efforts to investigate workplace
    immigration law compliance; the California Values Act, which limits
    communication from state and local law enforcement with federal immigration
    officials and prevents them from investigating people for immigration
    enforcement purposes; and A.B. 103, which subjects local detention
    facilities to twice-yearly inspections by the Attorney General’s office.

    The lawsuit,

    United States of America v. California

    , claims that the California laws render it impossible for the federal
    government to deport people not born in the United States who live in
    California. It alleges that California has obstructed the United States’
    ability to enforce laws that Congress has created, and that the California
    protections violate the constitutional principle that federal immigration
    law is the supreme law of the land. All three laws were signed during the
    Trump administration. Governor Brown signed the Immigration Worker
    Protection Act and the California Values Act in October 2017, and A.B. 103
    in June 2017.The lawsuit, which also names Governor Brown and AG Becerra as
    defendant, calls for a declaration that the provisions are invalid, as well
    as preliminary and permanent injunctions. Under the preemption doctrine,
    when a state law obstructs or conflicts with federal law, the state law is

    Remarkably the Trump administration has relied on

    Arizona v. United States

    , a 2012 Supreme Court decision that held that Arizona had overstepped its
    limits by enacting immigration laws that penalized non-citizens that
    undermined federal immigration law. When the Obama administration launched
    this lawsuit against Arizona, it was criticized by Republicans as
    undermining state rights, and it is thus ironic that the Trump
    administration is relying on Arizona v. United States to attack
    the laws of California that are the opposite of Arizona’s, which are
    friendly towards immigrants.

    While advocates in favor of more friendly immigration laws, including yours
    truly, cheered when the Supreme Court found most of Arizona’s laws
    preempted by federal immigration law, this is not a case of double
    standards when the same advocates are critical of the Trump
    administration’s latest lawsuit against California. Arizona’s SB 1070 truly
    conflicted with federal immigration law, according to the Supreme Court,
    and were contrary to the federal immigration scheme that was enacted by
    Congress. Those laws literally usurped federal immigration law. For
    instance, Section 3 of SB 1070 penalized non-citizens for failure to carry
    registration documents even though there was a similar comprehensive
    federal requirement to carry registration documents. Section 5(c)
    criminalized unauthorized immigrants who applied for work. The federal
    scheme criminalized only employers, but not the individual for unauthorized
    work, and thus 5(c) stood as an obstacle to the objectives of Congress.
    Section 6 allowed Arizona police officers to make warrantless arrests based
    on probable cause that a non-citizen was removable from the United States.
    This too was preempted because under the federal scheme being removable is
    not a criminal offense. Still, Arizona was a mixed decision.
    Section 2(B), the most controversial provision of SB 1070 known as the
    “show me your papers” law, was upheld. The Supreme Court held that 2(B) was
    not creating a new state immigration law unlike the other provisions that
    were found unconstitutional; it only allowed Arizona police officers to
    determine if someone was unlawfully present by inquiring about person’s
    status with DHS, and such communication and exchange of information had not
    been foreclosed by Congress.

    Would California’s laws, even if friendly towards immigrants, be preempted
    under Arizona v. US? The fact that a state may pass an immigrant
    friendly law rather than a punitive law is not determinative in analyzing
    whether the law has been preempted if those laws still pose an obstacle to
    the enforcement of federal law or are in conflict with it.

    Under the doctrine of preemption, which is based on the Supremacy Clause in
    the US Constitution, federal law preempts state law, even when the laws
    conflict. Thus, a federal court may require a state to stop certain
    behavior it believes interferes with, or is in conflict with, federal law.
    Notwithstanding the sweeping Constitutional mandate in favor federal laws
    being the supreme law of the country, states too possess sovereignty
    concurrent with the federal government. Therefore, the Intent of Congress
    is the key. When there is an express preemption provision in a federal
    statute, courts will identify the domain expressly preempted by that

    When there is no express provision in a federal statute, a state law can
    also be impliedly preempted under field preemption or conflict preemption.
    Under field preemption, it must be demonstrated that the federal government
    has fully occupied the field it has chosen to regulate. In the case of
    conflict preemption, if there is a conflict between the state law and the
    federal law, it must be demonstrated that compliance with both federal and
    state law is a physical impossibility or that the state law stands as an
    obstacle to the purposes of Congress.

    Relying on Arizona v. United States, the complaint in United States v. California claims that the United States has
    broad authority to establish immigration laws, the execution of which
    states cannot obstruct or discriminate against. The complaint further
    asserts that Congress has created laws that provide broad authority to the
    federal government to investigate, arrest, detain and remove non-citizens
    suspected to being or found to be unlawfully in the US. The complaint also
    states that consultation between the federal and state governments is an
    important feature of the immigration system, and thus a state may not
    prohibit its official from providing information to the DHS regarding the
    citizenship or immigration status of an individual. Finally, the complaint
    notes that Congress has enacted a comprehensive framework for combatting
    the employment of illegal aliens, and can penalize employers for not
    verifying the employment status of employees or for knowingly hiring
    unauthorized workers.

    Although California will make extensive arguments in defending its laws,
    some preliminary observations can be made. The California laws have been
    enacted to protect the constitutional and civil rights of all people living
    in the state of California. While the federal government is authorized to
    enforce the immigration laws, there have been many instances of egregious
    abuses by ICE agents that violate the rights of California residents.
    California is not interfering in the enforcement federal immigration laws
    or usurping them like Arizona did, but is providing a constitutional
    baseline for federal agents when enforcing federal law. A state can pass
    laws with the objective of protecting its residents. Thus, in

    De Canas v. Bica

    , the Supreme Court held that a state law regulating non-citizens is not
    per se preempted as a regulation of federal immigration law, which is
    essentially a determination of who should or not be admitted in the
    country. States possess broad police powers to regulate the employment
    relationship and to protect workers within the state. Even if the
    California laws mildly frustrate federal authority, they only ensure that
    the civil rights of California residents subjected to heavy handed
    enforcement are protected. According to its website, the Civil Rights
    Enforcement Section in the California Attorney General’s office is
    committed to the strong and vigorous enforcement of federal and state civil
    rights laws. Thus, the California laws have been enacted to protect a
    legitimate state interest – the constitutional and civil rights of its
    residents – rather than to oust the federal government from enforcing
    immigration laws. Federal ICE agents are still free to enter California to
    enforce the immigration law in order to apprehend, detain and deport
    non-citizens who are not lawfully in the US.

    The California Values Act prohibits state and local officials from
    providing information regarding a person’s release, unless there is a
    judicial warrant or a judicial probable cause determination or the
    individual has been convicted of certain felonies or other serious crimes.
    It is well
    within the constitutional rights of a state to refuse to provide such

    . Pursuant to
    Printz v. United States

    , 521 U.S. 898 (1997), the federal government cannot commandeer states to
    enact or administer a federal regulatory program under the Tenth Amendment.
    In that case, sheriffs challenged the federal Brady Act, which required
    local sheriffs to conduct background checks for gun purchasers. Some
    sheriffs resisted because they objected to the federal regulation of
    firearms. Justice Antonin Scalia, writing for the majority, held that the
    sheriffs, as well as states, cannot be commandeered under federal law
    enforcement schemes with which they disagreed. Moreover, the underpinning
    behind the California Values Act is to keep communities safe by ensuring
    that local police can function effectively within the community by not
    betraying the trust of immigrants who may cooperate as crime victims. If
    local police were required to provide information regarding non-citizens,
    they would not be able combat crimes effectively.

    The Immigrant Worker Protection Act prevents employers from voluntarily
    consenting to an immigration enforcement agent form entering the workplace
    or providing access to the employer’s records, unless the agent has a
    judicial warrant or consent is otherwise required by federal law. The law
    also requires employers to notify employees within 72 hours off receiving a
    notice of inspection. While the Trump administration argues that preventing
    an employer from voluntarily consenting to an agent from entering the
    workplace or providing records undermines the ability of enforcement agents
    from enforcing the employer sanctions provisions under the Immigration and
    Nationality Act, what the California law does is to again set a baseline
    that would protect the constitutional and civil rights of California
    workers. The law does not prevent the federal government from enforcing
    federal law, it only insists that agents obtain a judicial warrant and
    workers be provided notice. It is

    well settled that ICE needs a judicial warrant under the Fourth

    t in order to enter a private place without consent. Although the Immigrant
    Worker Protection Act precludes an employer from providing voluntary
    consent, which may be viewed as interfering with the federal scheme, a
    judicial warrant could still be justified as the workers may not have
    consented to a federal agent entering the work place even if the employer
    may have.

    Similarly, California’s AB 103 requiring state officials to review county,
    local or private locked detention facilities in which noncitizens are being
    detained is to ensure that the detention facilities meet the constitutional
    standards. There have been far too many cases of non-citizens being
    detained for purposes of civil proceedings
    being abused and mistreated

    . Again, AB 103’s motivation is not to prevent the detention of
    non-citizens but to ensure that their detention meets minimum
    constitutional standards.

    Although Attorney General Sessions on behalf of the Trump administration
    believes that California’s laws ought to be preempted based on Arizona v. United States, they are essentially civil rights laws.
    A state may enact laws ensuring the civil rights of its residents,
    including non-citizens, whether legal or not. Civil rights flow from the US
    Constitution, as well as California’s Constitution, and they ought not to
    be preempted, especially in light of egregious abuses by
    ICE agents in enforcing federal immigration law

    . Ensuring civil rights to all is a bedrock American principle. Some
    believe that California may have gone too far, but it can be legitimately
    argued that a state law upholding civil rights should never be in conflict
    with a federal law or be an obstacle to federal immigration law
    enforcement. Civil rights must be adhered to by all government officials,
    including federal immigration authorities. The preemption doctrine cannot
    be invoked by federal authorities as an excuse for violating civil rights.

    Reprinted with permission.

    About The Author

    About The Author

    Cyrus D. MehtaCyrus D. Mehta a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City and a member of the Alliance of Business Immigration Lawyers. He is listed as a most highly regarded individual by International Who's Who of Corporate Immigration Lawyers 2011 and is ranked by Chambers USA 2011. Mr. Mehta is the Vice Chair of AILA's Ethics Committee and past Chair of AILA's Pro Bono Committee. He is a former Chair of the Board of Trustees of the American Immigration Council (2004�06). He was also Secretary (2003�07) and Chair of the Committee on Immigration and Nationality Law (2000�03) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." He received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

    The opinions expressed in this article do not necessarily reflect the opinion of

  2. #2
    There is more to this situation than whether California's laws are constitutional. As I explain in the following article, California's problems could just be beginning, even if they win the lawsuit.

    Even without Trump's lawsuit, California may have to abandon sanctuary policies. By Nolan Rappaport

    Nolan Rappaport

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