The War California will Lose

Tony Quinn
Political Analyst

Attorney General Jeff Sessions’ brief visit to Sacramento in which he explained the federal government’s lawsuits against three California bills that set up a “sanctuary state” has led Gov Jerry Brown to declare that the Trump Administration is “going to war against the state of California.”

Brown is right; and this is a war that California is going to lose.  Sessions reminded his Sacramento audience that nullification of federal laws, which is what he said California is trying to do, was settled at Gettysburg. “There is no nullification. There is no secession. Federal law is ‘the supreme law of the land.’ I would invite any doubters to Gettysburg, and to the graves of John C. Calhoun and Abraham Lincoln.”

But one need not go to Gettysburg, or to the South Carolina grave of the great nullifier Calhoun.  One needs only to read two recent decisions relating to immigration in which California argued vigorously that federal supremacy pre-empts any attempt by states to regulate immigration.

In 2010, Arizona passed SB 1070 to allow its local police to enforce immigration laws the state insisted were not being enforced by the Obama Administration.  In 2012, this law came before the Supreme Court which said quite clearly: no way can the state take immigration enforcement into its own hands.

In an opinion written by Justice Anthony Kennedy and embraced by the Court’s liberals, the Supreme Court said that the federal government’s authority to regulate immigration is “broad” and “undoubted.”  That authority is derived from the Constitution’s directive to Congress to “establish a uniform rule of naturalization.”

Kennedy went onto state that, “the federal government has occupied the field of alien registration,” meaning that any state action interfering with this power “even complementary state regulation is impermissible.”

Section 6 of SB 1070 raised issues very close to those raised by California’s sanctuary state laws. This section gave state police the authority to arrest illegal immigrants on their own; that is, to exert a state authority over the federal government.  But said the Court, those powers are pre-empted by federal law because they create an “obstacle to the full purposes and objectives of Congress.” The Court noted that Section 6 would give state officers “even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers.”  Furthermore, the Court said, the removal process is “entrusted to the discretion of the federal government.”

Attorney General Xavier Becerra makes the lame claim that the California law is protected by the 10th Amendment which he claims gives the state authority to enact its own laws on immigration enforcement.  But one need go no further than the famed Proposition 187 case in 1994 to see that this does not hold water.

California passed Proposition 187 in November 1994, intending to reduce public benefits for illegal immigrants.  Immediately that law was challenged in court and the late Judge Mariana Pfaelzer, a Jimmy Carter appointee, ruled in 1997 that virtually the entire law was unconstitutional noting that, “California is powerless to enact its own legislative scheme to regulate immigration. It is likewise powerless to enact its own legislative scheme to regulate alien access to public benefits.”

So it is not really necessary to go back to Gettysburg, or to disturb the sleeping Calhoun, to see that California’s attempt to nullify federal immigration practices is not going to pass constitutional muster.

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