California Supreme Court Unanimously Supports The Broadest View Of State And Local Government Authority To Enforce Immigration Law
With almost no notice from the media or immigration bar, the California Supreme Court -- the most influential state high court in the nation on immigration law -- has issued an opinion that significantly expands the authority of state and local governments to enforce federal immigration law and of state courts to adjudicate violations of such laws.
The decision, In Re Jose C., 45 Cal. 4th 534 (January 22, 2009), held that a juvenile detained near the U.S. border at Calexico, California could be declared a ward of the state under California Welfare & Institutions Code § 602, based on a finding that he illegally brought six aliens into the United States for financial gain, in violation of 8 U.S.C. 1324(a)(2)(B)(ii). The juvenile and lower appellate courts rejected the juvenile's claim that the state could not adjudicate federal immigration law.
Justice Kathryn Werdegar, writing for a unanimous high court, not only upheld the lower decisions, but applied their reasoning to state and local government agencies in general. "Section 602, which allows the state courts to declare a juvenile a ward of the court based on a violation of federal law, is not preempted by the Supremacy Clause, 18 U.S.C. § 3231 (granting district courts exclusive original jurisdiction over federal criminal cases), or by any other provision of federal law, including the INA counterpart to § 3231, 8 U.S.C. § 1329". Regardless of whether characterized as civil or criminal, wardship proceedings that determine whether a federal criminal statute has been violated are not preempted. To the extent state law establishes sanctions for federal offenses, state courts retain jurisdiction under their own state laws to hear cases and impose punishment. By incorporating federal immigration law by reference, § 602 provides a jurisdictional basis for the imposition of independent state sanctions, and grants state courts authority to adjudicate such matters.
Further, Justice Werdegar held that California has an independent, inherent state interest in rehabilitating juveniles within California who are unable to conform their conduct to the requirements of the law-whether that law is a local ordinance, state statute, or federal immigration enactment. 18 U.S.C. § 3231 did not deprive state courts of jurisdiction granted under their own state laws to impose independent state sanctions. In fact, Congress has encouraged states and localities to assist in the enforcement of federal immigration policy. The Court concluded that insofar as § 602 authorized state courts to address juvenile violations of the immigration laws, it does assist in federal immigration enforcement.
In Re Jose C. underlined that the states are independent sovereigns and possess inherent police power to criminally punish conduct inimical to the public welfare, even when that same conduct is also prohibited under federal immigration law. According to the Court, Congress may pass a law barring a particular act and imposing a specific punishment, and a state legislature may pass a state law barring the same act and imposing a different specific punishment, without encroaching upon the exclusive jurisdiction of the federal courts. A state or territory that elects to incorporate portions of federal criminal law into its own criminal code may establish state jurisdiction to try violations as state crimes. Whether a state legislature imposes independent state punishment for an act by writing its own statute prohibiting it, or by writing a statute incorporating an existing federal criminal prohibition, is immaterial. The distinction is a purely formal one.
The Supreme Court held that the general presumption against preemption applies in the context of immigration law. The absence of an express exclusion of state court jurisdiction is strong and arguably sufficient evidence that Congress had no preemptive intent. The power to regulate immigration is not necessarily coextensive with the power to adjudicate immigration law violations. Only if the state statute is in fact a regulation of immigration -- a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain -- is preemption automatic. Otherwise, state law will be displaced only after compelling affirmative congressional action. This strong presumption against preemption was confirmed just last week by the United States Supreme Court, in Wyeth v. Levine.
The California Supreme Court emphasized that nothing in Title 8 (the INA) expressly divests states of jurisdiction over matters touching on immigration generally or alien smuggling in particular. In fact, federal law evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws. No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws. Congress has established a regime of cooperative federalism, in which local, state, and federal governments may work together to ensure the achievement of federal criminal immigration policy. This is the antithesis of field preemption.
Justice Werdegar wrote that 8 USC 1324(c) expressly allows state and local enforcement of § 1324 alien smuggling provisions, and 8 USC 1357(g)(10) expressly allows cooperative enforcement of civil immigration law violations, even in the absence of a written agreement.
The effect of In Re Jose C. will be significant. Certainly, the doctrines of jurisdictional and field preemption as bars to state and local enforcement and adjudication have been dealt a lethal blow, and the scope of obstacle preemption has been greatly restricted. In California, state agencies and--more practically--cities and counties may now implement anti-harboring and anti-sanctuary laws without fear of predatory lawsuits by anti-citizen organizations.
Conversely, attempts by a state legislature or city council to enact immigration law resistance measures that undermine federal law and policy, such as restrictions on civil servant and law enforcement cooperation with immigration authorities, have become much more constitutionally suspect.
The California state courts have become more favorable venues for private civil enforcement of federal laws, through declaratory actions, RICO suits, et cetera. Given the reaffirmation of state and local authority on March 11 by the Ninth Circuit in Chicanos Por La Causa v. Napolitano, the In Re Jose C. state enforcement doctrines seem destined to become "law west of the Rockies."
Michael Hethmon is the General Counsel for Immigration Reform Law Institute, the only public interest law organization working exclusively to protect the legal rights, privileges, and property of U.S. citizens and their communities from injuries and damages caused by unlawful immigration. Mike Hethmon specializes in the representation of the interests of United States citizens in immigration-related cases. He has published commentary and analysis on a wide range of immigration-related legal issues. He provides technical advice in drafting effective and constitutional legislative proposals to reform our immigration law to federal and state legislators. He has testified on immigration-related issues before Congress and state legislatures.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.