California’s decision to become a “Sanctuary State” and defy the federal government on immigration, likely to become law later this month, places California in the company of state’s rights extremists that once tried to stop public school integration by much the same means.
In 1956, in response to the Supreme Court’s 1954 school integration decision, the state of Virginia devised a theory that it had the right to defy a federal law it did not like and could retain its racially segregated public schools. This became known as Massive Resistance, state sponsored resistance to federal law. California now seems set to go down the same path with its Sanctuary State bill that tries to prevent federal immigration law enforcement.
Drawing from pre-Civil War ideas that states could nullify a federal law they did not like, Virginia determined to stop integration of its public schools by “interposing” itself between its segregated schools and the federal government that told them to desegregate. Virginia passed a statute refusing to cooperate with federal directives to integrate its schools by every means the state had, including closing public schools rather than desegregate them.
This is essentially what Senate President Pro Tem Kevin de Leon is doing with his SB 54. It would prohibit state and local law enforcement from using their resources to “investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes” (legislative analysis). Constitutionally this is little different than what Virginia tried to do to stop integration 60 years ago.
Before the Civil War, John C. Calhoun of South Carolina devised the idea that states could nullify federal laws and find them unconstitutional. The Civil War ended efforts at nullification of federal laws. Interposition was a 20th Century variation on this, and it was no more successful. Virginia claimed state power to declare federal actions to force school integration invalid as De Leon wants to declare federal immigration practices invalid.
Many California communities have agreements with federal immigration officials that they detain illegal immigrates they have arrested for other offenses. SB 54 would make this illegal, but what’s really going on is the desire of De Leon that California to interpose itself between the Trump Administration and its enforcement of existing immigration laws, even at the cost of endangering innocent Californians.
“There’s a lot of bills in Sacramento right now that are tying our hands and keeping us from doing the jobs we’re elected to do, which is to protect the citizens in our county,” said Orange County Sheriff Sandra Hutchens. “It’s very political. It’s anti-Trump.”
Massive Resistance was the same thing. As one congressman put it at the time, the objective was to stop the federal government from forcing “the mixing of the races” on the people of Virginia. In 1959, the school board of Price Edward County closed all its public schools and used the funds to set up private all white academies for the county’s white students, leaving black students with no schools to go to.
Eventually, federal courts did intervene in the 1960s and brought Massive Resistance to an end. The US Supreme Court made it clear that school desegregation was the law of the land, and while it took nearly a decade, Virginia did finally integrate its public schools.
Eventually De Leon and the legislature will lose its Sanctuary State crusade. There are jurisdictions within California that want to cooperate in the deportation of illegal immigrant criminals they are holding. Federal courts will not uphold a law that prevents a county sheriff from doing his or her job.
Sen. De Leon may also want to read the opinion of Justice Anthony Kennedy in the 2012 ruling striking down an Arizona law that tried to set up its own immigration law. “The National Government has significant power to regulate immigration. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law,” Kennedy wrote.
In 2010, Arizona was involved in its own version of Massive Resistance, trying to enact a law that it allowed it to enforce immigration law as it saw fit regardless of the preferences of the federal government. The Obama Administration took Arizona to court and won.
It will not take long for the Trump Administration to apply the same legal test to California’s State Sanctuary law. Given Justice Kennedy’s opinion, California’s attempt to interpose itself between illegal immigrants and the enforcement of federal law will be no more successful than have been other forms of Massive Resistance throughout our history.