States’ Rights? More Like State Wrongs



The Orange County Register recently featured an opinion piece claiming that the Trump administration’s “immigration raids” in sanctuary cities raise “age-old states’ rights issues.” According to the piece’s author, the Tenth Amendment to the Constitution gives states considerable leeway to pass “sanctuary” laws limiting when, where and how the federal government can go about enforcing immigration law. He states, “…immigration law is a federal prerogative, but it’s more complicated than it seems. States have every right to place limits on the behavior of authorities under their command.  California, for instance, has passed three major — and constitutionally acceptable — laws that restrict local governments and private employers from cooperating with ICE.”

But those claims are woefully off-base. In reality, federal authority over immigration enforcement is not more complicated than it seems. In fact, it’s pretty clear. The Tenth Amendment to the Constitution states the following, “The powers not delegated to the United States by the Constitution, nor prohibited it by it to the states, are reserved to the States respectively, or to the people.”

Immigration is one of a handful of functions that has been delegated exclusively to the federal government, meaning that it has been expressly prohibited to the states and making it an area in which states have no authority to act. Indeed, the Supreme Court has acknowledged this multiple times, most recently in its 2012 opinion for Arizona v. United States. Simply put, California doesn’t have any legal basis for interfering with the lawful exercise of immigration enforcement authority by any federal agency.

As the Register asserts, California does have every right to place limits on the behavior of state authorities under its command, but only so long as they are conducting state business. However, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) – both federal agencies – operate under the exclusive direction of the federal government, not the leaders of the Golden State. And California officials have no authority to limit the actions of federal officials conducting federal business.

Oh, and those “constitutionally acceptable” laws restricting local governments and private employers from cooperating with ICE – they are nothing of the sort. As the Supreme Court noted in Arizona v. U.S., “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders,” and, “…state laws are preempted when they conflict with federal law.” In reality, California’s sanctuary laws are blatantly unconstitutional and are an unlawful interference with the exercise of a federal function.

As if that weren’t obvious enough, federal statute also expressly prohibits states from passing any laws that impede communication with federal immigration authorities. 8 U.S. Code § 1373 explicitly says that states, “…may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Department of Homeland Security information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Even if the Tenth Amendment didn’t exist, that would create a Supremacy Clause issue.

Article VI, Paragraph 2 of the Constitution, known as the “Supremacy Clause,” establishes a hierarchy for applying our laws. The federal Constitution, and any federal laws made pursuant to it, take precedence over state laws and state constitutions. States may not interfere with the federal government’s exercise of its constitutional powers. And they may not assume any functions that are delegated exclusively to the federal government. So, California’s laws preventing local governments and private employers from cooperating with ICE are null and void. Pursuant to the Supremacy Clause, they are trumped by Section 1373.

There’s an old maxim in Biblical scholarship that is equally applicable to the interpretation of the law: “A text without context is a pretext.” The Orange County Register has allowed an opinion contributor to use states’ rights as an excuse for California’s flagrant defiance of immigration law. But when the relevant texts – the Constitution and the Immigration and Nationality Act – are placed in context, the notion that sanctuary cities are a states’ rights issue blows away like dust in the Santa Ana winds.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

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