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Could California Sue to Stop Trump's Retaliatory ICE Raids?

The administration's weaponization of ICE may hurt its existing lawsuit against the Golden State's sanctuary protections, analysts say.
Protesters hold signs during a demonstration outside of the San Francisco office of the Immigration and Customs Enforcement on June 19th, 2018.

Protesters hold signs during a demonstration outside of the San Francisco office of the Immigration and Customs Enforcement on June 19th, 2018.

Immigration agents arrested a whopping 162 undocumented people in Los Angeles last week, in news overshadowed by mounting anger over the Trump administration's separation of immigrant families. Analysts agree that the sweep—one of several in recent months—is a retaliatory measure against the city and state's so-called sanctuary protections. But experts are divided over whether such an act of reprisal could prompt a significant legal challenge against the White House.

Rights advocates and legal scholars agree that the Trump administration appears to be using Immigration and Customs Enforcement raids to penalize California and cities like Los Angeles that have adopted sanctuary protections, barring collaboration with federal immigration agents, in response to what many call President Donald Trump's unprecedented hostility to migrants.

ICE "is clearly targeting California for some degree of extra enforcement because of California's efforts at the state level, and at the level of some cities and counties, to restrict certain types of cooperation between law enforcement and ICE," says Jean Reisz, a University of Southern California law professor and supervising attorney at the university's immigration clinic.

Trump administration officials have said in no uncertain terms that the sweeps are retaliatory. At the start of the year, when California enacted its sanctuary law, the California Values Act, ICE Acting Director Thomas Homan promised retribution. "What I can tell you we're going to do in response to this, as I said, we're going to vastly increase our enforcement footprint in the state of California," he told Fox News in January.

The administration's efforts to use immigration enforcement to compel California's submission appear to fly in the face of the constitutional principle of federalism—the interplay of federal and state authority that is at the heart of the face-off between Washington and California over immigrants. The Trump administration and its supporters have argued, in an ongoing lawsuit against the state, that California is overstepping its jurisdiction by barring state employees and facilities from complying with immigration agents. California and its supporters have argued that immigration is a federal matter and that helping immigration enforcement would force it to act beyond the scope of its power.

Now, the Trump administration appears to be using mass-arrests to weigh in on California state and municipal sanctuary policies. It might stand to reason then that amid a broader legal battle over federal versus state and municipal jurisdiction, California immigrant rights advocates would file suit against Washington's encroachment on its authority. But analysts are split on the potential for such a case.

For prominent immigration advocates, there are no plans to mount any such legal bid. "The federal government is within their authority to conduct workplace raids," says Kevin Solis, the spokesman for the immigrant rights group DREAM Team Los Angeles.

USC's Reisz says that, while it appears the Trump administration is indeed using immigration enforcement as a tactic to overstep the bounds of the federal government's jurisdiction, the federal government could easily argue that "we have the most immigration violations in California as opposed to other states. We have determined for national security to target California."

"Perhaps there is an argument that ICE is disproportionately enforcing immigrations laws in California as opposed to other states, but that is a weak case and would not benefit any of the individuals being arrested by ICE," Reisz adds.

Not all experts agree with Reisz. Douglas Kmiec, a professor of constitutional law and a former state ambassador to Malta, says a challenge to the administration's apparent weaponization of ICE is possible.

"Prosecutorial discretion is vast; nevertheless, it cannot be wholly arbitrary and capricious," Kmiec says. "In this case, there is a bona fide dispute over the extent to which the federal government has preempted state and local authority. While the state and local governments may ultimately lose, if there is a pattern of retaliatory enforcement, before the underlying issue of allocation of authority is resolved, it is not inconceivable to envision a lawsuit asking for damages under either equal protection order due process."

Other legal scholars observe the alleged retaliatory sweeps may deal a blow to Washington's existing lawsuit against California authorities.

"California and the Trump administration are already deeply involved in litigation over the constitutionality of the state's sanctuary policies. Even without filing a separate lawsuit, California has a strong legal argument that the ICE raids are a retaliatory and punitive act against the state for its leadership as a sanctuary state," says Margaret Russell, a constitutional law professor at Santa Clara University.

It appears that by ruling on California's sanctuary law, the courts will not only clarify what role states can or can't play in federal immigration enforcement but also whether the federal government can use things like mass-deportations to force state compliance with its policy.

California officials and their supporters in the ongoing battle with Washington over immigrants have signaled in previous interviews with Pacific Standard that they are confident the courts will rule in California's favor. Amid a congruous battle between the state and municipalities voting to exempt themselves from California's sanctuary provisions in support of Trump's immigration policies, California Attorney General Xavier Becerra told Pacific Standard that the best place to answer questions of federal versus state and local authority was through the justice system. "The Values Act is fully legal—it does not conflict with federal law, and it works in concert with federal law," he said last month.

California's supporters frequently point to the 2012 Supreme Court case Arizona v. United States, saying that there is precedent for the justices ruling against states involving themselves even in the support of matters of federal authority like immigration. In that case, California filed a brief challenging an Arizona law allowing Arizona police enforcement to cooperate with ICE. California argued that, even by helping federal immigration enforcement, Arizona was interfering with a matter of federal authority. The court ruled in California's favor.

But in 2018, with a slightly changed Supreme Court and in a radically different political climate, the verdict is still very much out.