California and Trump’s Feds Headed to Major Clash on Immigration

Yves here. The immigration fight is proving to be intriguing legally as well as high stakes politically. However, it does seem surprising that as Trump is moving rapidly to adopt pro-business positions, why he is still fighting on the immigrant front.

I hope knowledgeable readers (particularly lawyers) will pipe up in comments. Based on what happened in financial services and securities law, I would normally assume the Feds have the upper hand in dealing with the states. “Pre-emption” as in Federal pre-emption of state law, is widespread if not pervasive on that front. However, even if that advantage would normally be applicable here, the Trump Administration is notably thin in general (they haven’t even named appointees for a huge number of mid-range positions) and appears to be particularly undermanned on the legal front. That appears to be another symptom of Trump’s outsider status, since the parts of the Federal government that aren’t run by the military-surveillance complex are run by lawyers.

So I would normally assume that the Federal government would have the advantage, but the weaknesses of the Trump team may allow California to prevail.

By Steven Rosenfeld, who covers national political issues for AlterNet, including America’s democracy and voting rights. He is the author of several books on elections and the co-author of Who Controls Our Schools: How Billionaire-Sponsored Privatization Is Destroying Democracy and the Charter School Industry (AlterNet eBook, 2016). Originally published at Alternet

The federal government and bastions of opposition to President Trump’s anti-immigrant police state are on a slow-motion collision course.

An 18-page memo by the Department of Homeland Security describes how the DHS and the Department of Justice are anticipating arresting, holding, processing and deporting large numbers of immigrants lacking visas. However, the memo also details how Trump’s coming crackdown is moving slowly, is poorly coordinated and barely funded—even as it has taken high-profile first steps like soliciting construction bids to build a border wall and is planning to showcase demonstration sections by late July.

On the other hand, in states like California, where one in three residents is foreign born and half the children have at least one immigrant parent, state and local governments are moving to thwart any massive new deportation effort. From the highest political circles in the legislature, to briefings by county agencies telling employees not to assist federal immigration police, to local cities declaring themselves sanctuaries, a colossal struggle is taking shape.

It will likely take months or longer before threshold questions—like what the feds can and can’t get away with—are resolved.

So far, it appears California officials are ahead of Trump, who issued his anti-immigration orders in late January. The California Senate just passed one bill telling local and state agencies not to cooperate with federal immigration enforcement, another to provide lawyers for immigrants facing deportation, and another barring public employees from disclosing a person’s religion. Its legislative leaders have challenged Trump administration officials to stop making blank threats and specify what laws the state is violating.

“If the Trump administration resorts to attempting to enforce its order against California, the Legislature will use all available means to defend the rights, values and safety of California,” the letter to Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly said, saying the administration has irresponsibly accused California of preventing Immigrations and Customs Enforcement from arresting people—but wouldn’t cite specifics. The California Supreme Court’s chief justice had written to both Sessions and Kelly, protesting that ICE was “stalking” courthouses to arrest for deportees.

“AG Sessions says that sanctuary policies make our cities and states LESS safe, but the facts show that the OPPOSITE is true,” Lt. Gov. Gavin Newsom wrote on Facebook. “In fact, on average, 35.5 fewer crimes are committed per 10,000 people in sanctuary counties, the median household annual income is $4,353 higher, the poverty rate is 2.3% lower, and unemployment is 1.1% lower. Before you take away our funds, I suggest you take a look at the facts, Mr. Attorney General.”

Across the state, more lines are being drawn. On Wednesday, the Center for Biological Diversity filed the first lawsuit to block a new border wall. Meanwhile, newspapers digging into police manuals have discovered that many departments have used the same text from a single publisher instructing cops to follow ICE’s orders. The American Civil Liberties Union has demanded that the publisher  retract and revise that language, because it “encourages profiling and illegal detentions, and runs afoul of the Fourth Amendment.” Meanwhile, small cities are declaring themselves “sanctuaries” and activists are planning to shelter migrants in their homes.

California’s top-to-bottom response is not unique. On Wednesday, 100 local officials from across the country sent a letter to Trump defending sanctuary policies, noting they make communities safer when residents don’t fear police, and noting arrests without legal warrants are unconstitutional. “Moreover, forcing cities to spend local resources enforcing an unfunded federal policy agenda also violates the Tenth Amendment, which prevents the federal government from coercing state and local governments.”

While some red states are going in the opposite direction—like Indiana, which just passed a law barring its campuses from becoming sanctuaries—these pro-migrant stances are on a slow but sure collision course with the Trump administration.

That becomes clear when reviewing DHS’s 18-page memo describing the plan and progress to enlarge its deportation machinery. The memo, which DHS would not comment on except to say it was a draft—possibly to discount its slow start—still showed that the Trump administration was envisioning mass expulsions and a border wall, even as it repeatedly said that multi-millions, if not billions, were needed to fully implement Trump’s order. The Washington Post first obtained the memo.

The border wall progress report was typical. That will begin by building 34 miles of levees along the Rio Grande Valley in Texas, and 14 miles of wall outside San Diego, California, starting in mid-June. The San Diego section will be “demonstration” projects, each a quarter-mile long, to be finished by late July, when, after evaluation, finalists among the contractors will be chosen. The San Diego Union Tribune’s coverage makes these prototypes seem like a public relations ploy—a showy first step while Trump and Congress wrestle over future funding. DHS’s memo says this is the first step in building a more complex wall than now exists.

The effort to ramp up arrests and deportations is also eye-opening. There are different federal immigration police. All are seeking to expand, but also are saying why that is not happening fast. The memo says that the U.S. Customs and Border Protection (CBP) service already created two “temporary holding facilities” for 500 people each along the Texas border at Tornillo and Donna. But “as a result of recent downward trends in migration,” meaning fewer people crossing the Mexican border, they haven’t been used. It then looks ahead and says CBP envisions holding up to 12,500 people in six undisclosed sites.

Immigration and Customs Enforcement has “added 1,100 beds, although the additional beds have not been used,” the memo said. “ICE has identified 27 potential locations capable of providing 21,000 additional bed spaces.” But ICE said it could not use those facilities until “funding has been identified.” Immigration lawyers have said these locations are county jails or privately run prisons.

The memo says CPB is looking to hire 500 more border police at a cost of $100 million. That 500-guard figure is a tenth of what Trump’s executive order called for, which means it would cost $1 billion to hire the 5,000 new border police he wants. As of early February, the CPB had 19,602 agents, which was only 92 percent of the 21,370 positions it has, the memo said. To accelerate hiring, it suggested waiving a lie detector test, physical fitness requirement and Spanish proficiency, and embark on a “digital and social media presence” to lure recruits. As of March, DHS said it took an average of 300 days to hire a border guard, but hoped that could be cut to 160 days.

The DHS memo also said it was working on a plan to have “third country nationals” remain in Mexico awaiting a U.S. hearing on their status, which Mexico has flatly rejected. DHS said that could allow immigration judges to hear cases by video-conferencing, which would take about 90 days to set up, and would only cost $50,000 instead of $400,000 to create temporary courtrooms in mobile trailers.

While the DHS memo was filled with numerous administrative hurdles—like saying it would be very hard to build the wall in federal Wilderness Areas given legal restrictions—it did emphasize that it was moving ahead. It cited Sessions’ directive to federal prosecutors to prioritize immigration enforcement and said DHS was seeking to sign legal agreements with state and local agencies “in addition to, rather than in place of, Federal performance of these duties.”

That last clause is telling. In the California legislators’ letter to Sessions and Kelly—saying put up or shut up with accusations that the state was illegally blocking federal efforts—it cited constitutional precedents saying states cannot be commandeered into being arms of the federal police. The letter from 100 local lawmakers around the country made the same point, citing the 10th Amendment. That’s why DHS’s memo says, “in addition to, rather than in place of,” suggesting they are not crossing that legal line.

You can expect that assertion will end up in court, along with other issues highlighted by DHS’s memo—such as how the federal law creating Wilderness Areas won’t allow construction of the wall, or the Center for Biological Diversity’s lawsuit.

On Friday, a Trump administration lawyer told a federal District Court judge in San Francisco that the president’s anti-sanctuary city executive order threatening the loss of federal funds was “narrow” and would not mean much for San Francisco—another apparent setback for his threats and policies. The city had sued, seeking a national restraining order on the threatened funding cuts.

“We have always been unafraid to lead and in the last few months we have announced repeatedly, emphatically, that we are unafraid to fight,” Newsom told the California Legislature before the governor’s 2017 state-of-the-state address. “Because what’s at stake isn’t just about our policies, it’s about our people.”

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    1. Dirk77

      …since it already takes the Californians who aren’t able to join the 10% that make out in the immigration Ponzi scheme (courtesy Dr Housing Bubble).

  1. lawyercat

    Yves, you’re instinct is right on preemption. But for immigration law, that means that states cannot enforce immigration law on their own, like Arizona wanted to do. This isn’t my area of expertise, but maybe I can shed some light on the issue:

    It’s hard to get a base-line here, but my understanding is that the overwhelming majority of deportations happen out of state and local jails, prisons, and courthouses. ICE generally lumps all of these deportations in with denials-of-entry at the border, although you can find some of those numbers broken down.

    So ICE wants, and in many cases does get, people like local jailers and sheriffs to check people’s immigration status and coordinate with ICE on deporting them if they do not have papers. Sanctuary cities and states have started limiting, or in a very few cases, eliminating that cooperation.

    The reason this is anti-commandeering instead of preemption is that ICE wants to force local officials to cooperate instead of trying to keep them out of the enforcement game. But anti-commandeering means that ICE cannot force local officials to actively do anything. The best that the federal government can do is to condition funding on cooperation.

    If you remember the Obamacare case, even the federal government is limited on how much in can condition funding on cooperation before it becomes “a gun to the head” of the states and is deemed unconstitutional. Basically, the conditioned funding has to be related to the area where the federal government wants help, like highway funding to get higher drinking ages. Here, that would seem to mean that only funding for immigration policing could be withheld, whereas Trump threatened to cut all funding to these cities and states while campaigning. Also, the Obamacare case put limits on how drastic the funding cuts could be, even if they are related to the area where the Feds want cooperation.

    So California probably has the upper hand in these cases. And the Trump Administration admitting that the funding cuts would be narrow is necessary to have any hopes of winning this case.

    At the end of the day, there aren’t enough federal agents to deport lots of people from within the United States. The feds need the state jails to cooperate, but they probably are pretty limited by anti-commandeering.

    1. Katharine

      If the federal government can only cut funds related to immigration enforcement and in fact California is not much concerned with that, California would seem likely to have the upper hand.

      Listening to a report on families with American-born children, it struck me that deporting wage-earning parents is going to put heavy pressure on social services, which ought to be another reason for states to resist cooperation. Federal actions are making things worse for states in very practical ways.

      1. philnc

        But social services have been mostly a state and local tax burden since the repeal of New Deal programs like AFDC by Bill Clinton in “ending welfare as we know it”. Likely neither the President nor Congress cares, especially since that burden shifting was so bipartisan.

      2. lawyercat

        I think that’s likely to be the case, but I’m not totally sure how tight the fit has to be. The feds might be able to say a bigger chunk of law enforcement grants can be withheld. Someone with more expertise than me would probably have a better sense.

    2. danny

      Agreed. California has the upper-hand legally. A factor in California’s favor – and a major error on his part – is that Trump misrepresents reality (like that’s never happened before) when he says that California doesn’t cooperate at all. Even so-called sanctuary cities such as LA cooperate to a limited extent. As noted by Sluggeaux, below, ICE knows when known immigrants will be released from jail and jailers will hold those detainees for a reasonable time before releasing them onto the streets. Cities and counties lease jail space to ICE/CBP to detain immigrants. California gives the Feds access to a gang database. And so on. In the same way that it makes sense to not assist with immigration round-ups it also makes sense for our cities to cooperate in limited manners with federal immigration authorities.

  2. james wordsworth

    One has to wonder how much those in power are relying on the power of the “bark” over the “bite”. The threats of deportation have probably already deterred many potential new arrivals, and one would suspect some existing persons may have decided to pack up and head home, or further north to Canada.

    It will be interesting to see how much of an economic effect this has. As many undocumented persons are fearful, it means they will spend less (especially on items that they might lose in a deportation – car/house etc), and possibly send more money out … just in case.

    1. MyLessThanPrimeBeef

      If there are fewer new arrivals, will companies pay more to hire documented workers, so products from across the Pacific can be shipped to Chicago, New York and Boston just in time?

  3. Sluggeaux

    The first point here is that everything that comes out of Trump’s mouth is political theater and huckster-ism with no intent to follow through on his threats or promises in any meaningful way.

    The second point I would make is that immigration favors business, as in its current form it mainly serves to drive down wages. As I have noted before, ICE and DHS never take the slightest action against employers, who are the drivers of mass immigration.

    Third, the California legislature is likewise engaging in political theater. Immigrants and their relatives make up a huge voting block in California. However, the reality is that Big Business-engineered mass immigration has been a disaster for Californians, who had a stable population of about 20 million circa 1980. Reagan and his union-busting progeny of both parties stepped-up immigration and now the population is an infrastructure-crushing 40 million-plus. Silicon Valley’s resident population of 1.9 million has had to accommodate at least a quarter-million H1-B’s in the past decade, creating an unprecented housing and transportation crisis in the region once known as the Valley of Heart’s Delight.

    Federal pre-emption does apply here, but my own experience of ICE and DHS is that they always target poor people on the margins as low-hanging fruit and won’t bother dealing with the abusive employer practices that make immigration a drain on the well-being of the state. However, the Feds can’t constitutionally make state and local officials their agents. Local government will (rightly) refuse to participate in the Feds discriminatory enforcement practices, and Trump can and will use it as an excuse to cut funding to the only state that failed to elect him.

    1. Stupendous Man - Defender of Liberty, Foe of Tyranny

      On your 2nd point some of the the actions that could be taken are found in INA: ACT 274A – UNLAWFUL EMPLOYMENT OF ALIENS.

      Civil actions, or penalties, are found in § (e)(4).

      Criminal actions, or penalties, are found in § (f)(1).

      If the intent is to reduce immigration, and the hiring/employment of unauthorized aliens, I suggest (as have many others before me) that enforcement of these already existing provisions would have a dramatic effect.

      1. California Employer

        The enforcement of existing immigration provisions puts employers in an impossible position. Anti-discrimination attorneys as well as EEOC have made it very clear to employers that it is illegal to discriminate based upon any perception that a potential hire may be an undocumented alien. Instead, as an employer, I take the applicant’s documents at face value.
        Since there is no standard for authenticating documents, there is no way for an untrained employer to determine if the documents are legitimate or not.
        It is also very clear to employers that if an employee is using a social security number that may belong to another, the employer is not to retaliate against the worker.
        Do I knowingly hire undocumented workers? No, each and every employee has documents. I do not really care about the immigration status of an applicant or employee.

    2. RL

      Your point about immigration enforcement ignoring employers is so true and sadly overlooked in the reporting and commentary on immigration issues.

    3. Aaron Aarons

      Free migration of workers from oppressed nations into an imperialist metropole like the U.S. is generally a benefit for the most oppressed parts of the global proletariat, even if it has negative effects on the material conditions of the working classes of the imperialist countries — conditions that are based on the inequality imposed by imperialism. It is not the job of the left to defend the conditions of the portions of the global working class that has shared in the spoils of imperialism at the expense of those who have been its victims. It is our job to fight for equality in opposition to all privilege, and not just against the massive privilege that is enjoyed by the actual owners of capital.

      1. Loblolly

        It is not the job of the left to defend the conditions of the portions of the global working class that has shared in the spoils of imperialism at the expense of those who have been its victims.

        Then I will never vote for them because that would be supporting a party that does not have mine or my nation’s interests at heart. Why would anyone sane ever vote for a party that promotes the interests of foreigners over those of their countryman?

        It is our job to fight for equality in opposition to all privilege, and not just against the massive privilege that is enjoyed by the actual owners of capital.

        Then you are the enemy of your country and seek to harm Americans by conflating our desire to improve our individual lives with the phenomenal power of global capital. I emphatically reject your belief that you know what is best for me. You seek to take power indiscriminately from all, high and low, in your quest to consolidate power in other hands. I’m assuming those of a technocracy much like the ones that currently exist and are doing such a great job achieving the exact opposite of the goals you claim to champion.

        1. Aaron Aarons

          No, I don’t claim to “know what is best for” whatever entity posts here under the name Loblolly.

          Nor do I care!

          1. JTFaraday

            Next time attack liberal feminists for being self concerned elitists instead of the white boy premium and you’ll be okay.

  4. Jess

    The solution is one nobody in power wants: Build the wall, staff up border enforcement, shut down the inflow of new immigrants, then grant clemency and a path to citizenship for those already here.

    But nobody wants to do that because the preferred path is to promise a wall, promise a crackdown, promise to stop the flow of illegals but give out the amnesty first, and then never follow through on the promises.

    Because remember, the U.S. and esp. CA has the space, water, food, social services, infrastructure, etc., to accommodate every single person in the world who wants to live here. Climate change, rising sea levels, droughts, decline in quality arable land mean nothing. We can do it. USA! USA! California! California.

    1. Aaron Aarons

      No place in the world has room for everybody who might want to live there, but why do the heirs (biological or, more often, social and political) of the European invaders who wiped out the indigenous peoples, have more rights to California, or any other parts of North America or of the world, than anybody else has? People who think that they do are as much of an enemy of humanity as are the capitalist class.

  5. Bigfoot

    “The California Senate just passed one bill…to provide lawyers for immigrants facing deportation…”

    This is SB 6:

    Originally, the bill was entitled the Due Process For All Act and would have provided an attorney for someone wth a conviction for a violent felony, etc. Since the concept and/or reality of actually Equal Protection is just too radical, the bill was renamed the Expanding Due Process Act and amended to not provide an attorney for someone with a conviction for a violent felony, etc.

    This is unfortunate for many reasons. One, it is cowardly. Two, as any minimally competent immigration attorney can tell you, figuring out whether or not a criminal conviction is a crime of violence and could/will lead to deportation is one of the more complex areas of immigration law. It is very easy to imagine a scenario in which an unrepresented immigrant defendant has been convicted of a crime at the state level that may or may not be a crime of violence at the federal level. What is and what is not a violent felony or an aggravated felony or a crime of violence for the purposes of deportation is not written in blood, excuse me I mean black letter law. Who determines if that crime is, ultimately, a crime of violence? The attorney from DHS? The Immigration Judge? Yes and yes if there is no one representing the accused. This scenario also allows DHS attorneys to keep pushing more and more convictions into the realm of crimes of violence without opposition. And three, the logic of the amended bill quite obviously follows the logic of Trump’s “bad hombres” sentiment.

    So yeah, the provision of an attorney as currently envisioned is, I think, constitutionally sound and ethically correct. But it really doesn’t do much in terms of staunch opposition to the Trump Admin’s immigration policy.

  6. RL

    California will prevail in this fight – the feds’ funding cut threat is hollow. There simply is no obligation for California to help ICE or CBP, so the concept of punishable “sanctuary” is, as was correctly stated above, poltical theater. That being said, there is a lot ICE and CBP can do on their own with respect to deportation, with enough funding. As a practicing deportation defense lawyer, I would not say that the overwhelming majority of deportations happen out of ICE detainers at local jails, and in any event, states cannot prevent ICE from identifying deportable prospects held in their jails.

    1. lawyercat

      Maybe you can help me because I’ve been trying to research this. ICE “fugitive operations” have never picked up more than 40,000 people in a year, according to its statistics, and it seems to be a fairly small percentage of the overall level of deportations from the interior. Were secure communities, 287(g), and priority enforcement not sitting on the local criminal justice systems to pick people up? I have even seen a story where ICE had an office inside Rickers that the state eventually kicked them out of.

      And my understanding is that ICE has a direct line to local jail and arrest records via information sharing with the FBI, which sounds like what you’re saying. Does that mean they can always pick people up, or do sanctuary jurisdictions end up releasing people that ICE ends up not catching because of lack of manpower and coordination?

      1. Sluggeaux

        The FBI-run NCIC database is a mandated national arrest and incarceration record-keeping system that every local authority must report to. It’s an essential record-keeping system, because it is the only effective way that interstate arrest and conviction records can be shared in a highly mobile society. Otherwise, sex-abusers, wife-beaters, and bank-robbers could re-invent themselves as first-offenders simply by renting a U-Haul.

        ICE and CBE have access to this database and use it to determine if a deportable prisoner is going to be released. Most California jurisdictions must tell the Feds when asked if they are going to release a deportable prisoner; however most also must refuse to hold that person beyond his or her sentence. When they have the manpower, ICE and CBE will simply show up and arrest the person as they are being released.

        It’s very easy and very low-risk for the Feds to do this — they know for a fact where the person will be, they know for a fact that the person is unarmed, they know for a fact that the person is in a controlled environment, and they know for a fact that the person is without associates who might pose a danger to the agents.

  7. Lyle James

    This is one California resident who thinks the best response to the whole mess is to vote for Calexit. It WILL be on the ballot next year. I argued before the last election that electing Trump would eliminate all the political double-speak of the Clintons et. al. and place the irreconcilable beliefs of major sectors of the population in plain view. And so it has. I almost hope Trump’s crackdown will have a genuine effect here — because it will only drive more voters next year to think Calexit is not so unthinkable after all.

    1. Danny

      No, CalExit won’t be on the ballot. The Yes California folks won’t collect enough signatures to get it on the ballot. And even if, shock of shocks, they do get enough signatures the state won’t put it on the ballot. The text of the ballot initiative would ‘revise’ the California Constitution, which it can’t do. Such revision can only be put on the ballot as the result of a constitutional convention.
      It’s also worth noting that states cannot unilaterally secede. We’d likely need an amendment to the US Constitution to provide a path to secession. Otherwise, the other 49 states would probably need to all unanimously consent to secession.
      It’s more practical to spend our resources helping to flip Congress to a progressive coalition than even talk about secession.

  8. Jesper

    So there is an option to choose not to follow the law? Might it not be better to have a law that is enforced instead of having this kind of embarrassment….

    1. Aaron Aarons

      What is embarrassing is when people who claim to be against racial and national oppression comply with laws that that further that oppression.

  9. Clifford Johnson

    One issue is all over litigation resisting Trump’s executive mandates in every sphere. Namely, mandates that injure must have a proper public purpose and a rational basis in fact to attain that purpose. Although this is a minimal constraint in usual circumstances, since only the slightest showing of rationality suffices, Trump’s irrationality is so gross that the courts are already (at least preliminarily) enjoining his edicts for lack of a rational basis.

    As applied to Trump’s co-operation mandate to sanctuary states and localities, these mandates largely concern police powers that are reserved to the states under the 10th Amendment. Strike one against Trump. Second, the criminal-economic grounds on which they are based are demonstrably irrational, in that the affected localities have significantly LOWER crime rates and significantly HIGHER rates of employment/pay. Third, withholding the only funds that can be withheld–funds for policing immigrants–can only worsen the very problems that Trump purportedly strives to alleviate.

    Note that the latter point could conceivably preclude Trump from withholding ANY funds.

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