Attorney General Jeff Sessions should win a historic victory for President Donald Trump in his lawsuit against California’s sanctuary laws, but that victory will likely come only from the Supreme Court and only in 2020.
Sessions’s willingness to take daily abuse from the president’s opponents in the meantime shows his commitment to the president’s America First agenda, and will deliver this victory before the next presidential election to vindicate the president’s agenda and the rule of law.
The U.S. Department of Justice (DOJ) sued California in federal court on Tuesday, challenging the constitutionality of the Golden State’s sanctuary state laws (which are more sweeping than left-wing sanctuary city laws). Those three laws (1) forbid California employers from cooperating with federal authorities on immigration, (2) forbid state or local police from cooperating with their federal counterparts on immigration, and (3) claims the power for state agents to enter federal detention facilities to make sure the U.S. government is treating illegal aliens the way California officials think they should.
The Constitution’s Tenth Amendment forbids the federal government from making a state enforce federal law. But far from the feds requiring cooperation here, these California laws forbid people in that state from voluntarily choosing to cooperate with the federal government.
DOJ’s lawsuit contends that California’s sanctuary laws violate the U.S. Constitution. Article I, Section 8 of the Constitution vests all immigration power exclusively in the federal government and also gives Congress power to regulate commerce with all foreign nations (which is implicated by their citizens being in this country). Moreover, Article II obligates the president to “take care that the laws be faithfully executed.” DOJ thus argues that California’s laws to the contrary violate Article VI’s Supremacy Clause, by which the Constitution, and all federal laws enacted to carry out constitutional duties, are “the supreme law of the land.”
In 1819, the Supreme Court held in McCullough v. Maryland that a state violates the Constitution’s Supremacy Clause when it passes laws that interfere with federal matters, and struck down a state law that taxed Congress’s central bank. The Court held that “the government of the Union, though limited in its powers, is supreme within its sphere of action.”
That is to say, the U.S. government has only enumerated powers: those spelled out in the Constitution as the responsibility of the federal government. But when it comes to those powers, the federal government’s laws and actions preempt any state laws to the contrary.
In its 1988 case South Carolina v. Baker, the Supreme Court held that state laws that treat the federal government unfavorably or discriminate against those who deal with the federal government are unconstitutional. In that case, the justices invoked the intergovernmental tax immunity doctrine to say that it is unconstitutional for a state to tax the federal government, but Baker’s holding also applies here, as this law targets both federal facilities as well as California businesses and police officers who are cooperating with DOJ or the U.S. Department of Homeland Security.
In its 2012 case Arizona v. United States, the Supreme Court held that federal authority over immigration is so complete that an Arizona law that sought to voluntarily help enforce federal law was preempted. The Court held that Washington, DC, sets policy and priorities on immigration, and that Arizona’s attempt to task its own officers with helping enforce those laws in a manner D.C. objected to was illegal.
Sessions’s decision to bring this lawsuit is bold. It is a courageous move and a principled one. Few political leaders would be willing to do so, and he deserves praise for leading the charge.
He is entitled to this respect because, although DOJ is correct in all of its legal arguments, it will take a couple years to win this case. It is unclear which way the case will go in front of Judge John Mendez of the U.S. District Court for the Eastern District of California, but DOJ likely faces an uphill climb there. But regardless of the initial ruling, the odds are overwhelming that the U.S. Court of Appeals for the Ninth Circuit – the second most-liberal appellate court in the country – will rule for California against the United States.
That means that DOJ will probably not get a preliminary injunction from the trial court to block California’s laws, a denial that will probably occur within the next four months. That likely setback (or unlikely early win) will go to a panel of the San Francisco-based Ninth Circuit, resulting in an almost-inevitable loss that will come down sometime in late 2018 or early 2019.
From there DOJ will petition the Supreme Court to take the case. If Sessions’s DOJ can file that petition by early January 2019 – which is unlikely because the Ninth Circuit may still have the case at that time – then the justices could hear arguments in April and render a decision in June. If the Ninth Circuit has not yet ruled against the Trump administration by January, then the case will run past the annual cutoff and be heard by the Supreme Court after its next term begins in October 2019. That means a decision would come down sometime in the spring or early summer of 2020.
In the meantime, Sessions will be subject to weekly abuse from people who oppose President Trump. We have already seen the over-the-top rhetoric for Gov. Jerry Brown, Sen. Kamala Harris, California Attorney General Xavier Becerra, and others, using references to racism, xenophobia, and every other bad motivation a person could have. Harris went so far as to say that Sessions has no credibility to speak out on these matters because he comes from Alabama, because of that state’s history with slavery and America’s Civil War. Such toxic rhetoric is divisive, slanderous, and absurd.
Yet Sessions knew that was he would suffer such abuse if he pressed this fight. His impassioned speech to California law enforcement officers on Wednesday included that he would use every power he possessed as U.S. attorney general to protect police officers and federal agents as well as the American people and ensure that the rule of law is restored in California when it comes to immigration.
Sessions is likely to deliver a historic victory for President Trump in this case before the next presidential election. This is an instance where good policy is also good politics. The American people elected the president to put America First, voting for his MAGA agenda.
What Sessions is doing by taking the heat to get the job done on immigration and the rule of law here is exactly what the American people hoped for when they put Donald Trump in the White House.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.