Sanctuary City & State Litigation Update: What Happens When Federal and Local Enforcement Priorities Conflict?

A Teleforum Call Sponsored by the Federalism & Separation of Power Practice Group

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The litigation over California's "sanctuary state" law raises important federalism questions that go far beyond the specific issue of immigration policy.  The outcome will have a significant impact on potential future state efforts to restrict cooperation with federal law enforcement policies, and federal efforts to compel such cooperation. The litigation involves a federal government challenge to three California laws: Senate Bill 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and Assembly Bill 450, which bars private employers from cooperating with federal Immigration and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law. Last summer, a federal district court ruled in favor of California on the first two issues, but supported the federal government on the third. In this teleforum, Ilya Shapiro and Ilya Somin will debate that and related cases and consider their broader implications for federalism.

Featuring:

Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Thursday, January, 10, 2019 during a live teleforum conference call held exclusively for Federalist Society members.

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is Sanctuary City & State Litigation Update: What Happens When Federal and Local Enforcement Priorities Conflict? My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today we are very fortunate to have with us Mr. Ilya Shapiro, who is Director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. Also with us is Professor Ilya Somin. He is Professor of Law at the Antonin Scalia Law School at George Mason University. After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for this subject or for one or both of our speakers. Thank you very much for speaking with us today. Ilya Shapiro, I believe the floor is yours.

 

Ilya Shapiro:  Great. Well, I think you'll find here that Ilya Somin and I are in agreement about some things and in disagreement about others. There're a lot of different sanctuary jurisdiction cases, I guess, you can put it – cities, states, and other political units that are opposed to the federal government's policies in this area. A flip side of what was going on under the Obama administration where, for example, Arizona and certain other states were trying to put in stricter immigration enforcement than the federal government wanted and one of those cases made it up to the Supreme Court. Here the federal government, now, the administration wants to crack down and step up deportations and investigations and things like that, and some of the states and counties are resisting that in various ways.

 

So, first, let's start with a scenario where Ilya Somin and I I think have the most disagreement, and that's over California sanctuary state laws, as [they] have been called. Now, there are three laws here that are at issue and that are being litigated. The first is called the California Values Act, which limits how state and local officials may cooperate with federal immigration officials. Absent a judicial warrant, law enforcement agencies in California are forbidden to provide federal authorities with information about an alien's relief state, and that prevents federal agents from taking custody of suspects at a secure facility, reducing the likelihood that the suspects will be caught and potentially putting federal enforcement efforts in dangerous situations. And the Supreme Court has held in Arizona v. United States—what I alluded to earlier, [it] struck down some provisions of that state's strict immigration law—that states can't enact laws that interfere with Congress' plenary power over immigration. And so the federal government here argues that the California Values Act defies a 1996 federal law that bars state and local governments from prohibiting the exchange of information regarding an individual's immigration statute.

 

But the law, to the extent that it interferes with that -- the California law to the extent that it interferes with that federal law has to trump; that is it shows that this particular federal law § 1373 commandeers state officials; that is it's not a proper exercise of federal power, I would argue, to dictate how state law enforcement agencies manage their own resources or enforcement priorities. And so even as California's policy of non-cooperation no doubt makes enforcement more difficult, and we might have agreement or disagreement about the policy aspects about that, but it doesn't constitute obstruction or interference with federal enforcement actions. And, again, that's 8 U.S.C. § 1373. That is how the district judge ruled, Judge Mendez, in the District Court for the Eastern District of California -- upheld the Values Act.

 

The second California law, which doesn't have a catchy title, it's simply called Assembly Bill 103, instructs California's attorney general to inspect and review detention facilities, both public and private, in which non-citizens are being housed and detained. Now, I think there's no problem if California wants to inspect its own facilities, but the State exceeds its authority when it targets federal facilities or federal contractors. Now, states certainly have the power to review or oversee federal facilities generally. For example, county health inspectors can check the cafeteria in a federal courthouse, but I don't think they can burden a specific exercise of federal power with additional constraints. I think that targeting federal agents for heightened scrutiny violates what's called the intergovernmental immunity doctrine. And this goes back to McCulloch v. Maryland from, I guess celebrating this year, its 200 anniversary in that case, which held that Maryland had overstepped its authority because the power to tax involves the power to destroy.

 

So anyway, here, Attorney General Becerra isn't merely inspecting federal facilities in neutral and consistent ways, but demands access to various private documents about the people being detained by the federal government in these federal facilities. So I think that this second sanctuary state law is unconstitutional. But the district judge disagreed and ruled for the state in this area as well. I'm sure Ilya Somin will get into that reasoning.

 

And, finally, the Immigrant Worker Protection Act, the third sanctuary state law in California. Under this law, if a federal immigration officer informs a business owner that he's employing a criminal alien, then the proprietor is barred from consenting to a search of the premises. So the federal government says, "We have reason to believe that you have a criminal alien and we want to search your property," and if the proprietor wants to allow the search under state California law, he cannot. And this is subject to a substantial fine. I don't think either the Constitution or federal law requires a warrant in such scenario. California's law applies only to immigration officers so proprietors remain free to consent to searches by federal EPA or health and safety inspectors.

 

For example, and I think because it thus interferes with the congressionally mandated in enforcement mission, it's unconstitutional under both the Supremacy Clause and, again, this intergovernmental immunity doctrine because, again, here California's instructing not its own officers and officials but private citizens. It's interposing itself into what's otherwise a relationship, investigatory and otherwise, between the federal government and citizens. But Judge Mendez upheld the employee notice provision of the Protection Act; that is that Congress did not indicate an attempt to keep an employee in the dark about inspection of immigration documents. But he did find that the consent to search portion of the Protection Act penalized employers who dealt with the federal government more harshly. And, thus, as I suggested was my argument, violated the intergovernmental immunity doctrine.

 

So in effect, upholding two of the three California state laws. I would've also struck down the second one about the inspection of federal facilities. I think Ilya Somin -- well, he can tell you what he thinks about that. But that is now up to appeal in the Ninth Circuit. I’m not sure if oral argument has been scheduled. It's on appeal.

 

Now, moving to a completely different scenario. This has probably gotten more attention because this litigation started -- the executive action followed by the litigation started at the beginning of the Trump administration. And, here, the Justice Department purported to place new conditions for states and other jurisdictions to be eligible to receive certain Justice Department grants that go towards law enforcement. And these are conditions on access requiring local and state governments to provide federal authorities with access to local and state correctional facilities that house aliens in order to determine immigration status. Notice: a notice condition requiring, upon request by federal immigration agencies, that localities and states have to give 48 hours' notice of a detained alien's release and specify the date and time when that release is scheduled for; and compliance requiring localities and states to certify that they comply with what I mentioned at the outset, 8 U.S.C. § 1373, which requires cooperation in various ways with federal immigration authorities.

 

And there've been a number of rulings in these cases. Chicago v. Sessions, the district judge struck down two of the three conditions. I think the notice one he upheld. The Seventh Circuit on appeal upheld the nationwide injunction against all of this, and there's going to be an en banc rehearing. Philadelphia v. Sessions, all three conditions were held unconstitutional, and Ilya Somin has written at length about this case. I'll let him go into it. That's now on appeal to the Third Circuit. And there are other cases, San Francisco v. Sessions, which was enjoined, but the nationwide injunction was stayed, pending appeal to the Ninth Circuit. City of Evanston, again out of the Northern District of Illinois. Here the same judge as in the Chicago case issued a nationwide injunction. The Seventh Circuit lifted the stay of the injunction, so the injunction is in place, pending appeal. And then there's another lawsuit by several states – New York, Connecticut, New Jersey, Rhode Island, Washington, Massachusetts, Virginia, New York City. This is a more recent suit in the Southern District of New York, and here the judge also found that the three conditions violated the separation of powers, and that § 1373 was unconstitutional commandeering.

 

So to be clear, I'm in agreement that the federal government is commandeering by telling state officials what they can and cannot due, even if it's a matter of information sharing, and therefore I think the challenges should succeed in my view. I don't think that nationwide injunctions are proper, however, because they're different kinds of grants, different amounts, they're orchestrated in different ways, in these different cities, counties, etc. And so I think there it's proper to litigate them on a case-by-case basis.

 

And, finally, one other case that's yet again kind of a different posture: Los Angeles v. Sessions. This regards Community Oriented Policing, or COPS, that distributes another type of grant, not the Byrne Memorial Grant that I mentioned previously. And DOJ has explained that they may give additional consideration to applicants that partner with federal law enforcement to address illegal immigration. So this involves certification of compliance or cooperation with federal authorities. And here, the district court ruled in favor of Los Angeles on the grounds that conditions were arbitrary and capricious, imposed with that authority, and issued a permanent injunction.

 

And one final wrinkle in at least the sanctuary city cases that I was just rifling through, there's an aspect of retroactivity here. That is part of the reason why I think the federal government should lose in these is that these are unilateral impositions of new conditions on appropriations that have already been legislated and funds appropriated rather than say a new kind of legislative writer rewriting the contract that states and cities are welcome to accept or not. So that kind of retroactive conditioning, or adding new conditions, might come afoul of even, say, NFIB, the challenge to the individual mandate in Obamacare where in the Medicaid funding portion part of the problem is that new conditions or new funding was all tied in with the old funding.

 

So lots of issues to throw on the wall, and I'm curious to hear Ilya Somin's reaction to that. I think I know where we agree and disagree, but, like I said, he has, especially on the sanctuary cities, spent more time writing about it than I have.

     

Prof. Ilya Somin:  This is Ilya Somin speaking now. I'd like to thank The Federalist Society for organizing this event, and all of you for listening, and Ilya Shapiro for his thoughtful contribution. I'm going to talk about what I think are actually three different buckets of sanctuary jurisdiction litigation are going on. First, Donald Trump's executive order from January 2017, which I don't think Ilya Shapiro covered. Second, the Jeff Sessions Justice Department policy trying to attach new conditions to federal grants. And then, finally, the sanctuary state laws adopted by California, which the federal government is now challenging in court. I think all three of the cases, or sets of cases, really, raise important issues about federalism which go beyond the specific sanctuary cities' issues and certainly beyond the specific federal grants that may be at issue. So even if you don't care that much about immigration policy or sanctuary cities specifically, this has big implications that I will talk about at the end of the discussion.

 

So first, the Trump executive order is one that he issued in January of 2017, and it says that it will cut off seemingly virtually all federal grants from any jurisdictions that don’t obey § 1373, which is the somewhat unusual federal law which forbids city and state governments from instructing their employees to not give information to federal immigration authorities about various individuals when they ask for it. So it has this somewhat strange structure.

 

Second, we have the Sessions policy, which as Ilya Shapiro mentioned has three conditions. It requires compliance with § 1373. Second, it requires jurisdictions to give the Department of Homeland Security access to detention facilities that they operate to determine whether there might be any undocumented aliens being held there. And, finally, they have to give DHS 48 hours' notice of the release of any alien for whom DHS has made a detainer request, presumably to make it easier for DHS to nab the person if they want to do so. While this has more conditions than the executive order does, it applies only to one type of grant: the Byrne Memorial Justice Assistance Grant, which is a grant for local law enforcement operations of various kinds.

 

Both the Trump executive order and the Sessions policy have been repeatedly struck down in numerous federal court decisions by judges of both parties, both Republican and Democratic judges, on this particular issue. It is indeed the case that we don't have Obama judges, or Trump judges, or Bush judges, or what have you, even though on other issues there may well be division between those types of judges. And the big reason why this has been struck down is one that Ilya Shapiro mentioned at the end of his presentation, which is that neither the Trump condition nor the Sessions condition are actually ones that would've been attached by Congress to these grants, and under Supreme Court precedent, it says that Congress can -- or that grant conditions can only be attached to federal grants to state governments if Congress has authorized them. And the text of the statute in here, it just simply has not done so, and courts have repeatedly ruled that to be the case with one small exception that I will address a bit later. And I think it's pretty important that there've been pretty wide agreements on this.

 

In addition, with respect to the Trump executive order, which seems to cover nearly all federal grants to these governments, we have the problem that it covers so many that we have a problem of coercion, as in the NFIB case with Medicaid, the Medicaid grants, that it's like a gun to the head, as Chief Justice Roberts put it. So the courts have struck down that policy on that basis as well. The Supreme Court has also said that in order for conditions to be constitutional, they have to be related to the federal interest in a particular policy. This is a pretty vague standard. It's hard to say what is related and what isn’t. Because the Trump executive order covers so many grants, it's pretty obvious that many of them are not related to immigration enforcement in any reasonable way, and the Court so ruled.

 

It is also possible that this is the case with the Sessions policy, and in Philadelphia v. Sessions, the judge indeed ruled that these grants for ordinary local law enforcement are not actually related to immigration enforcement which is very different in many ways and often conflicts with traditional law enforcement because the more local police are involved in immigration enforcement, the more local immigrant communities distress them and don't give them information about other conventional crimes and the like. So there's, perhaps, relatedness issue there as well.

 

I should mention that the administration's lawyers have tried to interpret the Trump executive order as only covering a narrow range of law enforcement grants and not all federal grants to these jurisdictions as the order itself actually says. I think this is just at odds with the text of the order. But if Trump really does want to focus the order just in a few law enforcement grants, all we have to do is rewrite it. It's very easy to do that, but significantly, he has not done so.

 

I would add that even in respect to those law enforcement grants, there is still no congressional authorization for imposing this condition. So even if it is [inaudible 18:38] in doubt, it's still unconstitutional.

 

There is another big issue at stake in these cases and that is whether § 1373 is unconstitutional, even aside from its being used as a grant condition. It's unconstitutional as I think, and Ilya Shapiro also agrees, because it's commandeering. Now, when this litigation first started, the question of whether § 1373 is unconstitutional was actually a difficult one because it has this convoluted structure, it doesn’t actually say "states and local governments must give the federal government this information." It says, "You can't instruct your subordinates to not give the information." However, along came NCAA v. Murphy, the sports gambling decision the Supreme Court decided last year, which struck down PASPA, a federal law which forbade state governments from legalizing sports gambling, or from authorizing it under their own laws. And the Supreme Court in a 7-2 decision said that still violates the commandeering doctrine because it dictates what a state legislature may and may not do. So it's still trying to control what the state legislature does in terms of authorizing what state government officials and functionaries can do. And, of course, the exact same thing is true of § 1373, and in the aftermath of that decision, lots of commentators, including me, predicted that this will be the death knell of § 1373 and that's exactly what has happened.

 

Multiple federal courts have cited the Murphy decision as a justification for striking down § 1373. And that even includes the district judge in Chicago v. Sessions, whom Ilya Shapiro mentioned. When he initially considered this issue, he upheld the constitutionality of 1373, but when it came back to him after NCAA v. Murphy, he said, "You know, what? After Murphy, I can't any longer maintain this position." So I think § 1373 most likely is not long for this world. There have now been, I think, two or three different federal courts which have ruled on that basis.

 

And I think this is significant because if circumventions like § 1373 are allowed to stand, this would raise -- this would create all sorts of opportunity for the federal government to seize control over state government functions indirectly. There's a lot of areas where they can say, "We're not telling you, 'You must do something.' We're just telling you, 'You must not instruct your employees not to cooperate with us.'" And the practical result of that is that the federal government will be able to use state and local employees for its own purposes, even when the state and local governments themselves don’t want that to happen.

 

Now, I'd like to talk about the sanctuary state law where I think we have more disagreements. As Ilya Shapiro mentioned, one provision of it just simply limits information sharing between state officials and federal immigration enforcers. I think the constitutionality of this turns on the fate of § 1373, and I think Ilya Shapiro and I agree that this § 1373 is probably a goner and should be.

 

The second provision is Assembly Bill 103 that requires state inspections of immigration detention facilities in California. And as Ilya Shapiro mentioned, the claim by the federal government here is that this violates intergovernmental immunity because it's a kind of discrimination against the federal government. But it's actually not discriminatory because as Judge Mendez, a Republican appointee, found in his decision, the inspections imposed on these federally operated detention facilities are actually less onerous than those that California imposes on its own prison facilities. So if anything, there is some discrimination in favor of the federal ICE detention facilities. Moreover, as we've all seen in recent headlines, ICE has a notorious history of abusive practices in its detention facilities – horrible cases of people dying through negligence or even deliberate malfeasance by ICE officials. Even if there was some extra inspection here, which there is not, it might be justified given that ICE's particularly terrible record. So it's important to understand here that the immunity doctrine does not bar all possible state inspections of federally operated facilities; it just bars discriminatory ones. And here there's no such discrimination.

 

The final issue is the question of Assembly Bill 450, which forbids employer cooperation with ICE inspections of their facilities unless required by a court order or by a specific federal law. So I think there's no problem of preemption here because in any case where this really is preempted, Bill 450 already says that if there is a specific federal law saying, "You must allow this inspection," then it will be allowed. There is, again, the question of intergovernmental immunity, and here I disagree both with Ilya Shapiro and Judge Mendez because I don’t see any discrimination here because in order to have discrimination, you have to have differential treatment of entities which are actually alike. And there is no other entity that is actually equivalent to ICE in the sense that it has the authority to nab people and deport them and detain them in terrible conditions, and then often deport them with, in many cases, very little due process. There is no equivalent state where a private agency can do this, and other federal agencies that can launch inspections also don't have those kinds of powers. And so because of the special nature of ICE, it doesn't have a direct equivalent, and therefore there can be no discrimination here and neither there is a problem of preemption. But I admit the case of 450 and 103, they do raise closer issues than some of those which are at stake in the other sanctuary city litigation.

 

So at the very end, I'd like to briefly note some broader implications of this. First, I think it's a good thing that the Trump administration has largely failed in its effort to attach or create new conditions for federal grants not authorized by Congress. If it could do this, it would undermine separation of powers, and it would create a massive tool of coercion that both this president and future president could use against the states and localities. There're many kinds of federal grants which give the states and localities some 30 percent of all their money. Even if conservatives may like this particular power grab because of its purposes, they probably won't be happy is President Elizabeth Warren or some other future Democratic president uses this similar power for liberal purposes. Similarly, as I mentioned before, the kind of commandeering that we see with § 1373 can easily be abused for both left-wing and right-wing ends. And, finally, the sanctuary state issue. I think conservatives and liberals to some extent can also have an important interest in ensuring that states don't have to provide assistance to federal policies in various ways, and that in some cases, they can hold the federal government accountable for abuses, so long as it is not specifically preempted by federal law, and so long as there is not some kind of unconstitutional discrimination against federal government. So I very much look forward to the rest of the discussion and to your questions.

 

Wesley Hodges:  Excellent. Ilya Shapiro, would you like to respond to Ilya Somin, or would you like to open it up for questions?

 

Ilya Shapiro:  Just one thing. If the administration wants to put new conditions, Congress would have to, I think. And then the only issue would be, then, are the conditions germane? That is are you actually tying law enforcement funds to law enforcement conditions, or is there some education grant or other thing that's not related and you can't commandeer? So if there were new legislation, new appropriations, riders, or programs, or what have you that had certain kinds of take-it-or-leave-it conditions, that could be possible. I've done a lot of these issues with notice, and commandeering would fall away.

 

And, finally, the federal government cannot preempt state laws by executive whim. This is the other big lesson of Arizona v. United States. I think a lot of the public perception is all or most of SB 1070, the Arizona state law, was struck down by the Supreme Court. Well, at the end of the day, only three provisions were. Most of the provisions didn't even make it to the Supreme Court, and the one that is the poster child of SB 1070 and restrictive state laws more broadly, the "show me your papers, please" provision was upheld, at least against facial challenge, unanimously by the Supreme Court because the argument there was that this requirement that local law enforcement seek federal information about people they detain who they suspect might be in the country illegally, that that is an attempt by the federal government to effectively preempt that state law by executive whim. That a new policy could come in, whether because of a new president or just because, and all of the sudden that state law would be un-preempted, that doesn't make sense, and therefore kind of the inverse may be at play here in the California law.

 

But that to me, I think, if this kind of tension -- which I think generally is healthy; states versus the federal government; states reasserting their sovereignty in a whole host of areas. But that is one thing to look for: Is the Executive trying to preempt state law simply by a change of policy, or is there actually a legal thing, or mechanism, or provision that they're otherwise trying to enforce?

 

Wesley Hodges:  Thank you, Mr. Shapiro. Professor Somin, would you like to respond?

 

Prof. Ilya Somin:  Only very briefly. I think I agree with the vast spoke of what Ilya Shapiro just said. Just a couple of small caveats. One is it is absolutely true that a big part of what we're looking at is the Executive arrogating powers that really belong to the Legislature on its own. The Executive cannot attach new conditions to federal grants or commandeer, even in cases where Congress can. With respect to commandeering, however, even Congress cannot do that. That's what the sports gambling case teaches us, among other cases, that even Congress could not enact something like the PASPA sport gambling act or § 1373 because state and local governments are supposed to have control over their own officials.

 

I certainly agree that if Congress were to create/attach new conditions to these grants or abolish these types of grants—I'm actually not a fan of the Byrne Justice Assistance Program—these issues would go away. But, obviously, it seems to me unlikely that Congress is going to do that in the near future. But if it does so, other issues might be raised, as Ilya said, respecting coercion and respecting relatedness and the like. So we'll have to see whether Congress will pass any new legislation in this area. But at least in the short run, I think legislation is unlikely because it'll be difficult to find legislation that the Democratic House and the Republican Senate and Trump can agree on.

 

Wesley Hodges:  Very good. With that, I'll go ahead and open the floor to questions. It does look like we do have one question out of the gate. Let's go ahead and turn to our first caller.

 

Caller 1:  Thank you. I have a forum shopping question. First, let me say at the outset that I guess I disagree about 1373. I don't really see the application of the NCAA case here. But I'm not here to argue that. My question is that I get concerned when Republicans bring all of their federal challenges in the Northern District of Texas and Democrats find a way to get their cases before favorite judges. And I guess I was surprised and concerned about one of the comments that Ilya Shapiro made about the two cases in the Northern District of Illinois. I gathered that one judge ruled in favor of Chicago, and then there was a separate case that was brought by the City of Evanston, I think you said. They ended up before the same judge. I had thought that in general most federal district courts required blind draws. I’m wondering if you have any idea how it was that the plaintiffs managed to get the second case before the same judge as the first one. And are you concerned by forum shopping and the way that you get the case before a favored federal district judge and the result is that you get a nationwide injunction based on the decision by someone you probably knew to begin with was going to rule your way?

 

Ilya Shapiro:  This question was probably mostly to me, so I'll start off. As Ilya Somin mentioned, NCAA v. Murphy was decided between the same district judge's decisions in the Chicago and Evanston cases. And that explains why there was one aspect of the ruling that the different in the subsequent -- in the second case, in the Evanston case. You know, forum shopping is going to happen naturally. This is a human thing, and I think judges in good faith can disagree over legal interpretations and what have you. The solution to that is to get quick appeals, and then ultimately, to have the Supreme Court resolve circuit splits, which it has not been doing a good job on in general. I had a piece in the Wall Street Journal last week about how the Supreme Court hasn't taken any Second Amendment cases now in over a decade since Heller to define the scope of that right. So I think if we have active percolation of the same issues in different places and different decisions going different ways, ultimately, that's for the Supreme Court to resolve.

 

Now, on the matter of nationwide injunctions, I'm not a "never or always appropriate" kind of person as I think I mentioned during my case in chief. I think if there is a truly national program or action, then there can't be but a nationwide injunction that if -- I think the prudential thing to do, then, is to stay that injunction or to immediately have an emergency appeal to the circuit court so it's not just the decision, the legal analysis of one judge making law for the whole country. But at the end of the day when you think about it, whether you're taking about Obamacare with the individual mandate, you can't really have a situation where the individual mandate is constitutional in Florida but not Ohio, or with the travel ban that there are different types of procedures for entering the country as a foreigner depending on whether you land at JFK or LAX. So those are truly national things.

 

On the other hand, there are local fixes. My approach to the sanctuary city litigation is that nationwide injunctions are improper because the grants are different, and it's not just you're asking an advisory opinion from a particular district judge about the whole Sessions policy or the Trump executive action or what have you. You're asking for analysis to the fact that hand of the local grant as made to that city or county or police department, or whatever the case may be. So there, I don't think nationwide injunctions are appropriate, even if the analysis would be very similar, and indeed it has been similar, whether you're talking about Chicago, or Philadelphia, or San Francisco. But still because you're dealing with local grants rather than a national federal program or executive action or enforcement action or something like that, I don't think nationwide injunctions are appropriate. It's a prudential thing, just like considerations of stare decisis, or [inaudible 35:12], or certainly these other things. I don't think it's something that you can draw a bright-line rule about. So it's a matter of judgment.

 

Prof. Ilya Somin:  So I wonder if I could briefly comment first on the specific situation in Chicago, and then on the broader issue of nationwide injunctions. In Chicago, what happened is that Judge Leinenweber, who by the way is a Reagan appointee and a Republican, issued a decision and a preliminary injunction where he struck down two conditions but upheld the § 1373 one. Then later, the case went back to him to make a final ruling and in between, Murphy v. NCAA happened. And so he reversed his previous position on the § 1373 issue because of the intervening Supreme Court decision, which was I think an entirely proper thing for him to do. And it was also entirely proper for that next stage of the case to go back to him. It's standard procedure.

 

I think forum shopping is a genuine issue. Both liberals and conservatives indulge in it. But in this set of issues, actually, Republican and Democratic appointed federal judges have ruled largely the same way on all the main issues. And for what it's worth, Judge Leinenweber's rulings on the substance of this case have actually been upheld by the Seventh Circuit, including in a panel with at least one Republican judge on it. So well-formed forum shopping is an extremely important phenomenon. In a number of cases it hasn’t played a big role, so far at least in these cases.

 

On the issue of nationwide injunctions, I think Ilya Shapiro and I agree on the general principle, but maybe not on its application here. I, too, agree that nationwide injunctions are appropriate in some cases but not in others. And whether they're not appropriate depends on the nature of the issue, namely whether the issue in question is one that differs based on local conditions or one that is going to be the same nationwide. But I think actually with respect to both the Sessions policy and the Trump executive order, the issues are actually the same nationwide because the big issue is whether Congress has, in fact, authorized these conditions or not. And if it hasn't authorized them, then it's illegal to impose them on any jurisdiction that receives the grant regardless of the exact amount and regardless of other aspects of how the jurisdiction may be using the money or the like.

 

I think this is a classic case for a nationwide injunction, though, of course, I do recognize that there are some people, including prominent legal scholars, who oppose nationwide injunctions on principle. I respect that position though I disagree with it. It may be that to delve into that, we would have to have a whole other teleforum specifically dedicated to nationwide injunctions. But if you're interested in this, there's actually a very interesting debate on this subject at The Federalist Society National Convention in November. And I believe the video is available for free at The Federalist Society website and I refer all of you who are interested to that video to watch it.

 

Wesley Hodges:  Wonderful. Well, thank you so much for that question, caller. We do appreciate it. And thank you for plugging that video, Ilya.

 

Prof. Ilya Somin:  I should just apologize if I mispronounced Judge Leinenweber's name. It's not an easy name to pronounce, and I hadn't thought to check ahead of time how to do it.

 

Ilya Shapiro:  And just on that case, Ilya, just for my clarification. I think I guess I missed it when I was trying to get that whole litany of all these. So one is styled Chicago v. Sessions and another one, for whatever reason, is Evanston, but you're telling me these are just different stages of the same litigation?

 

Prof. Ilya Somin:  I certainly know that in Chicago v. Sessions, there was the pattern of events that I just described. My guess is that Evanston is probably consolidated with Chicago, but perhaps it's a separate case. But given even if it is separate though, if it raises the exact same issues about the exact same grant, it would be normal for that case to go to the, I think be assigned to the same judge --

 

Ilya Shapiro:  Given that it's the same district, I think that's right.

 

Prof. Ilya Somin:  It's possible there are specific rules in the Northern District of Illinois that I'm not aware of, but I think generally speaking, if you have another case about the exact same issue in the exact same jurisdiction, it will be assigned to the same judge. And certainly the judge in this case is a Republican, Reagan appointee, so it's probably not that the plaintiffs would've chosen -- although there is an interesting irony here that the legal principles which the mostly liberal jurisdictions suing here are relying on are ones that are traditionally associated with conservative Republicans. Liberals are very critical of many of the Supreme Court decisions underlying these cases brought by the sanctuary cities. And ironically, these sort of conservative, or supposedly conservative, administration under Trump is arguing in favor of very broad federal power to coerce states and localities. So perhaps this is a case where liberal plaintiffs might prefer to forum shop for a conservative judge. But be that as it may, it doesn't seem like there's any nefarious forum shopping or nefarious improper assignment of a judge going on here.

 

Ilya Shapiro:  Yeah, for that matter it's quite obvious that the City of Chicago would be suing in the City of Chicago in federal court there, and the City of San Francisco would be suing --

 

Prof. Ilya Somin:  I believe Chicago did not have a choice. In this case involving the seven states, maybe they had more of a choice, and, again, it would be naïve to imagine that there isn't forum shopping going on in all sorts of cases involving disputes between the Trump administration and the state and local governments. But I don't think it's played much role in the sanctuary cases because for the most part, with vary rare exceptions, both conservative and liberal judges have come out the same way, even on the sanctuary state case where you actually had a Republican appointee rule in favor of the state on two to three of the issues. So as I said before, this is an area where it doesn't seem like there's a big difference between Obama judges on the one hand and Trump judges on the other, or Bush judges or what have you, though the sanctuary state case, unlike some of these others, is at an early stage, so perhaps more such differences will emerge as it gets through the Ninth Circuit and possibly even to the Supreme Court.

 

Wesley Hodges:  Wonderful. Well, it looks like we do have two more questions in the queue. Let's go ahead and continue our Q&A.

 

Gary Wheaton:  Hi there, guys. This is Gary Wheaton, again, in New Hampshire. And I've been looking for other examples where someone can be detained by the government, state or federal, other than this area, right? So you can use it for an example of detention and/or arrest—I don't know if I want to use the word "arrest"—where the government can take custody of a person without a warrant is really what we're talking about here because California's argument is that if you want to talk to these people, if you want to detain them, give me a warrant. Right?

 

Prof. Ilya Somin:  So it's possible that I still haven't heard the full nature of the question. You can correct me if I'm missing something. The answer is of course there are other kinds of arrests for which people are detained. What makes this one special is that it's not that just that these people can be detained, but that they can be deported forever and often with little or no due process to the extent that studies show that over the last 10 or 12 years, ICE has actually mistakenly deported thousands of U.S. citizens whom they misidentified has undocumented immigrants. And in addition, as I mentioned earlier, the conditions of detention are often truly awful, not just under this administration but under the Obama administration. Also there were scandals with that. So because of those two aspects, I don't think there is any other true equivalent to this, and therefore the claim that this is discrimination with respect to California Bill 450 just doesn’t stand up because in order to have discrimination, you have to have a distinction made between two entities which are alike. And in this case there is no real parallel entity that is truly equivalent to ICE, whether it's a state government operation, or a private one, or even another federal agency.

 

Ilya Shapiro:  I'm not really sure I fully understood the question because we're not talking about, I don't think in any of these cases, of detentions or arrests without a warrant. It's typically someone is -- there's an investigation and someone is detained for whatever proper reason, whether it's because you're speeding or because there's an investigation of your documents or something. Or it's a border situation. That’s a, quote/unquote "special area" where everybody is stopped and can be searched and things like that. Or in an airport. And then it comes out because they're conducting this safety or border inspection, it comes out that you're not lawfully entering or not lawfully in the country or what have you. And at that point you're arrested. More specifically, I guess this goes towards the third California law, the Immigrant Worker Protection Act. That isn't about the powers of the federal government to detain someone. It's about whether California can tell private businesses that they can't consent to investigation by the federal government. So it's not about the federal power to detain, or the state power to detain for that matter, someone without a sufficient level of suspicion or probable cause or whatever, but about the interrelationship of the federal government, state government, and private citizens.

 

Prof. Ilya Somin:  I would just merely add, if I can, that the purpose of these investigations is to find people that they might want to detain. And if they do detain anybody, then it raises the issues that I mentioned earlier which are different from virtually any other context we could be talking about.

 

Gary Wheaton:  Yeah, so let me take this in another direction, if I can. So you've got a state government, California or otherwise, that has somebody in prison already on a state charge. And they are an undocumented, illegal, whatever you want to call it coming up for release soon, and the federal government comes in and says, "I want that person. Do not release that person. And when you're ready, release them into my custody, and make those arrangements." Right? So in that scenario, you've got a federalism issue – state versus federal. But I just want another example -- you can argue for or against this, right? The argument for, to me, is to find another area of the law or other examples that are setting precedent where the federal government takes custody, due process included, takes custody of somebody from the state into federal without an official warrant is really what I'm looking for examples of. Because that's going to be a great argument if you can come up with it, in my opinion.

 

Ilya Shapiro:  I see. It's the detainers. Right. Someone is, per se, deportable if they've committed a certain set of state crimes. And so it's collateral consequence under federal law of having violated state law. And here the federal government wants that kind of information. But it's a unique scenario, simply because as Ilya said, immigration is a unique area of law and the consequence of deportation is a different type of consequence than further incarceration or what have you. In theory, if the feds simply wanted the person because they had committed federal violations as well, they wouldn't have to wait for release, right? They could charge, and prosecute, and try, and get sentenced for the federal charges, and it would be up to the judge to determine whether during the pendency of the state punishment whether the federal punishment is going to be served concurrently or transferred to a federal facility or all of that. So it works a little different than when the consequence that the federal government is seeking is deportation. And so you can't do that concurrently with serving in a state prison.

 

Gary Wheaton:  But the federal government can make federal charges for every single illegal immigrant, if you will, because they broke federal law of coming here. But they can't. They don’t want to. They use detainers instead because it's obviously less expensive, less time consuming in the high volumes we're talking about here. So that's the whole concept. Where are there other examples of where any government is doing this process with something similar to a detainer versus a warrant? If there isn't any examples, then obviously we're just going on case precedent then, right?

 

Prof. Ilya Somin:  It may indeed be more convenient for the federal government if they can use detainers. But to the extent that there isn’t any other equivalent to this sort of thing, then that's just, first of all, it strengthens my argument that there's no discrimination against the federal government going on here. And second with respect to commandeering, on that question it actually doesn't matter that much whether there are other similar operations or not, commandeering is unconstitutional, even in cases where the federal government is trying to accomplish some unique task and even in cases where it would be very convenient or useful for the federal government to get the cooperation of the states or localities. In pretty much every other area where we've had commandeering cases, the federal government also could make and did make the argument that it would be useful, or convenient, or helpful to have state assistance. That was true in the gun purchase background check case, the Printz case in 1999, where Justice Scalia wrote the opinion striking down the federal law requiring state officials do the background checks, even though the federal government argued it would be very useful to have the federal officials do it for all sorts of reasons. There would be efficiencies, cost savings, and so on.

 

I think for the commandeering issue, the unique aspect of it doesn't matter that much for California Bill 450. The uniqueness, actually, I think supports my argument to the extent that it is unique.

 

Gary Wheaton:  Unfortunately. I wish it didn't, but I think you're right. If we can't find another precedent, then I guess the government, as far as reciprocity or whatever you want to call it when the state and federal people don’t cooperate with each other, then the next question then becomes can the federal government withhold, seize, and things like that to coerce cooperation, right?

 

Prof. Ilya Somin:  And that gets us to the issue that we were talking about where I think Ilya Shapiro and I largely agree that to the extent that the federal government can pressure the states with withholding grants and the like, it's only if the federal government -- it's only if Congress passes conditions that are attached to those grants and it has to be only prospective attached to future grants, not past ones, and it has to meet some other criteria as well. So if you want Congress to pressure -- or if you want the federal government to pressure the states on this, then you would need to have Congress pass the relevant conditions, and those conditions would need to meet some other criteria as well.

 

Wesley Hodges:  Thank you so much, caller. Looks like we are towards the top of our hour, so I just want to take a couple moments and turn the mic back to Professor Somin and Mr. Shapiro. Mr. Shapiro, would you like to have any closing thoughts for us today?

 

Ilya Shapiro:  I'm just looking forward to seeing these issues percolate further. I think tension between state and federal powers and the dual sovereigns, that's an area that needs to be further fleshed out, both in terms of policy and judicial rulings. And it comes up in lots of different areas – marijuana, guns, immigration, lots of other things, sports gambling we just saw with Murphy. So I think it's healthy to have that kind of rivalry, if you will, or tension between the federal and state governments.

 

It's also healthy to have actual cooperative federalism, not what academics call cooperative federalism, which is neither cooperative nor federalism, but it's thorny issues like immigration enforcement. It would be much better if state and federal governments weren't being coerced or just suing each other and rather work together for the interests of the citizens of the country or the particular state that the stake is involved in. We all have lots of wishes for how public policy can work better in this country.

 

Prof. Ilya Somin:  I largely agree with most of that. I would say that these cases raise some issues which are just straightforward but important applications of existing precedent, like that Congress, not the Executive, has the power to set conditions on federal grants. There are other issues like § 1373 and also some of the issues involved in the California sanctuary state case that are not fully resolved by previous cases. I think those will be important going forward as they are fully settled and addressed. And my hope and, tentatively as least, my expectation is that these cases collectively will be an important victory for state governments and for constitutional constraints on federal power, and perhaps, a win with this hope that this will help people on the left see the value of those constraints. And maybe it'll help people on the right see the importance of sticking with them, even in cases where it's a Republican administration which is trying to violate them rather than a Democratic one.

 

Wesley Hodges:  Wonderful. Well, everyone, thank you so much for joining us. On behalf of The Federalist Society, I'd like to our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining. This call is now adjourned.

 

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