This blog was authored by Alysha Stein-Manes.

Last month, the United States Department of Justice (DOJ) filed a lawsuit in federal court against the State of California (the “State”), alleging that three laws enacted by the State between June and October 2017 – Senate Bill (SB) 54 and Assembly Bills (AB) 103 and 450 – are unconstitutional.

SB 54 and AB 450 address law enforcement agencies and public and private employers’ abilities to cooperate with federal immigration authorities.

  • SB 54, or the “California Values Act,” which amended Sections 7282 and 7282.5 of the Government Code, added Chapter 17.25 to the Government Code, and repealed Section 111369 of the Health & Safety Code, prohibits state and local law enforcement agencies, including school police and security departments, from using their resources to carry out immigration enforcement activities. Such activities include, but are not limited to, making arrests based on civil immigration warrants; performing the functions of an immigration officer; inquiring into an individual’s immigration status; and providing an individual’s personal information to federal immigration authorities. Despite these limitations, local and state law enforcement agencies continue to be permitted to share with federal immigration authorities information about an individual’s criminal history; make inquiries necessary to grant visas to potential victims of crime or trafficking; respond to a notification request by federal immigration authorities regarding persons currently serving sentences for violent felonies; and participate in a joint law enforcement task force with federal agencies, so long as the primary purpose of that task force is not immigration enforcement.
  • AB 450, which added Sections 7285.1 through 7285.3 to the Government Code and Sections 90.2 and 1019.2 to the Labor Code, places significant limitations on public agencies and  private employers’, including private schools, ability to cooperate with federal immigration authorities and imposes fines for violating those limitations. These laws prohibit a public and private employer from giving voluntary consent for an immigration enforcement agent to enter nonpublic areas of the workplace, except as required by federal law or a judicial warrant. They also prohibit a private employer from giving voluntary consent for an immigration enforcement agent to access, review, or obtain employee records, except as required by federal law or a subpoena or court order. The law further requires employers to post a notice to employees when federal immigration authorities have given notice of an inspection of I-9 Employment Eligibility Verification forms and the written results of any such inspection to affected employees. Finally, private employers are now prohibited from re-verifying a current employee’s employment eligibility at a time or in a manner not required by federal law.

SB 54, AB 450 and AB 103 — popularly known as California’s so-called “sanctuary laws,” – became effective January 1, 2018.

The DOJ’s lawsuit specifically alleges that these three newly enacted laws violate the “Supremacy Clause” of the United States Constitution (the “Constitution”) and other federal immigration laws. The Supremacy Clause, codified in Article VI, Clause 2 of the Constitution, establishes that the Constitution and federal laws enacted pursuant to the Constitution are the “supreme law of the land.”  Because of the Supremacy Clause, states cannot make laws that are “contrary” to federal law.  The Supreme Court of the United States has interpreted the Supremacy Clause to prohibit the enactment of state laws that stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  (See Hines v. Davidowitz (1941) 312 U.S. 52, 67 .) To the extent that state laws are found to be an “obstacle,” such laws are considered to be “preempted” by federal law and are therefore unconstitutional.  For example, in the immigration context, the Supreme Court of the United States has held as unconstitutional an Arizona law that permitted state peace officers to arrest a person believed to be undocumented, without first obtaining a warrant, because the law provided state officers with greater authority than permitted under federal immigration law.  (See Arizona v. U.S.  (2012) 567 US 387, 407-410.)

In the instant lawsuit, the DOJ alleges that AB 103, AB 450, and SB 54 endanger federal immigration officials and therefore constitute an “obstacle” to the enforcement of federal law. The DOJ’s complaint asks the court to do two primary things.  First, it asks that the court issue a “preliminary” injunction” against the State prohibiting it from implementing the provisions of these laws until the Court determines whether the newly enacted laws themselves are preempted by federal law.  Second, it asks the court to find that these laws violate the Supremacy Cause and other federal immigration laws, thus making them unconstitutional, and that the court because of this, permanently prohibit the State from implementing the laws.

The DOJ’s lawsuit was filed in federal court in the Eastern District of California. The Court has yet to arguments from the DOJ and California regarding the preliminary injunction, as well as the constitutionality of the laws themselves.  The Court will likely hear arguments regarding the DOJ’s request for a preliminary injunction before hearing arguments on the underlying issue of constitutionality.

If SB 54 is found unconstitutional, local and state law enforcement agencies may also have greater autonomy to voluntarily use their resources to assist federal officials in implementing federal immigration laws. Additionally, if the Court determines that AB 450 is unconstitutional, private employers in California will have more autonomy to voluntarily share employment data and provide federal immigration officers with access to their employees.

Law enforcement agencies and public and private employers may continue to adhere to the new laws if and until the Court grants the DOJ’s preliminary or permanent injunctions. However, whatever the outcome of the District Court’s ruling, it is likely that the “losing” party will appeal the matter to the Ninth Circuit and ultimately, the Supreme Court of the United States.

We will monitor this case and update you as it proceeds.

4/18/2018 Correction: AB 450 applies to public and private employers –the original article did not include public agencies.

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Photo of Alysha Stein-Manes Alysha Stein-Manes

Alysha Stein-Manes primarily represents Liebert Cassidy Whitmore’s educational institution clients in a range of employment, labor, and student matters.

Alysha regularly advises community college districts on academic and classified employee evaluation and discipline; administrator contracts and evaluation; equal employment opportunity recruitment and hiring…

Alysha Stein-Manes primarily represents Liebert Cassidy Whitmore’s educational institution clients in a range of employment, labor, and student matters.

Alysha regularly advises community college districts on academic and classified employee evaluation and discipline; administrator contracts and evaluation; equal employment opportunity recruitment and hiring practices; discrimination, harassment, and retaliation investigations; general governance matters; California and federal Voting Rights Act compliance; government transparency under the Brown Act and California Public Records Act; and a variety of student matters.  She is also experienced working with governing boards on conducting CEO evaluations and contract negotiations, as well as advising and training boards on ethics, Brown Act, and other governance issues.

Alysha also regularly represents community college districts in arbitrations and administrative proceedings regarding discipline of permanent employees and the release of probationary faculty members, and in matters before the U.S. Equal Employment Opportunity Commission, California Department of Fair Employment and Housing, and California Office of Administrative Hearings.

Alysha provides counsel to private institutions of higher education, in matters including the intersection of student disability accommodations and discipline; personnel policies and practices; employee evaluation and discipline; Family Education Rights and Privacy Act (“FERPA”); and discrimination and harassment complaints and investigations.

Alysha is also a leader in the retirement and health arenas.  She regularly provides counsel to LCW’s clients about the Affordable Care Act and disability interactive process, and to LCW’s public agency clients in the areas of the post-retirement work restrictions, PEPRA compliance, and reporting employee compensation to CalSTRS and CalPERS.

Alysha has extensive experience as a litigator, representing public agencies and non-profit educational institutions at all levels of the litigation process in state and federal court

Alysha serves on the Executive Committees for LCW’s Public Education Practice Group and Retirement, Benefits, and Disability Practice Group.

Prior to joining LCW, Alysha served as an Education Policy Analyst for former Los Angeles Mayor Antonio R. Villaraigosa.  In this role, she advised and developed communications strategies for the Mayor’s education platform and initiatives.  Alysha also advocated for federal grants and legislation at local, state and federal levels, and managed collaborative and multi-dimensional projects between mayoral and school district staff and labor, business and non-profit stakeholders to improve educational outcomes for the children of Los Angeles.