Sessions suing California is the latest battle in a centuries-old war for power over immigration

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

<a target=”&mdash;blank” href=”https://theconversation.com/profiles/anthony-johnstone-343872″>Anthony Johnstone</a>, <a target=”&mdash;blank” href=”http://theconversation.com/institutions/the-university-of-montana-2659″>The University of Montana</a>

(THE CONVERSATION) President Donald Trump’s recent <a target=”&mdash;blank” href=”https://nyti.ms/2tJTxBD”>trip to California</a> came days after <a target=”&mdash;blank” href=”https://www.justice.gov/opa/pr/justice-department-files-preemption-lawsuit-against-state-california-stop-interference”>Attorney General Jeff Sessions sued</a> the state for violations of federal immigration law.

That case challenges recent California laws limiting cooperation with federal agents. Several cities and states <a target=”&mdash;blank” href=”https://theconversation.com/san-francisco-is-using-a-montana-sheriffs-playbook-to-sue-trump-on-sanctuary-cities-74660″>have declined</a> to help with increased federal efforts to arrest, detain and deport people living in the United States without authorization.

These are only the latest arguments in a centuries-old debate about immigration. I <a target=”&mdash;blank” href=”https://scholar.google.com/citations?user=3boMaZ4AAAAJ&amp;hl=en”>study how</a><a target=”&mdash;blank” href=”https://ssrn.com/abstract=2945405″>states use constitutional arguments</a> in challenging the federal government.

The current debate poses a recurring question: Who gets to decide what it means to be an American? As it turns out, both sides are drawing on precedents set by their political opponents.

Early state challenges to President Adams

Some of our nation’s first great controversies arose over who had power to set immigration law. The Declaration of Independence <a target=”&mdash;blank” href=”https://www.archives.gov/founding-docs/declaration-transcript”>complained King George III</a> had “endeavoured to prevent the population of these States.” His policies <a target=”&mdash;blank” href=”http://www.jstor.org/stable/2145724″>limited the growth</a> of the colonies by obstructing immigration from England and elsewhere.

After independence, the Constitution <a target=”&mdash;blank” href=”https://constitutioncenter.org/interactive-constitution/articles/article-iv#section-2″>required</a> each state to extend basic rights to citizens from other states. At the time, <a target=”&mdash;blank” href=”http://press-pubs.uchicago.edu/founders/documents/a1%E2%80%948%E2%80%944%E2%80%94citizenships5.html”>states’ rules</a> on immigration varied. So the Constitution also gave Congress <a target=”&mdash;blank” href=”https://constitutioncenter.org/interactive-constitution/articles/article-i#section-8″>the power</a> to “establish a uniform Rule of Naturalization,” or citizenship, regardless of state residence. However, the Constitution did not clearly define federal power over noncitizens, or “aliens.”

Within a decade, the federal government clashed with the states over who had power over noncitizens. In 1798, President John Adams signed the <a target=”&mdash;blank” href=”http://www.loc.gov/rr/program/bib/ourdocs/Alien.html”>Alien and Sedition Acts</a>, a series of laws he used against his political enemies. One of the laws, the <a target=”&mdash;blank” href=”https://www.ourdocuments.gov/doc.php?flash=true&amp;doc=16&amp;page=transcript#no-1″>Alien Act</a>, asserted federal power to deport noncitizens the president found “dangerous to the peace and safety of the United States.”

States challenged these laws because they viewed them as federal overreach. Thomas Jefferson drafted a resolution for Kentucky legislators protesting the Alien Act and related laws. It <a target=”&mdash;blank” href=”https://founders.archives.gov/?q=Ancestor%3ATSJN-01-30-02-0370&amp;s=1511311111&amp;r=4″>argued</a>, “Alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States.” James Madison <a target=”&mdash;blank” href=”https://founders.archives.gov/documents/Madison/01-17-02-0128″>drafted</a> a similar resolution for Virginia.

Within two years, Jefferson <a target=”&mdash;blank” href=”https://www.loc.gov/rr/program/bib/elections/election1800.html”>defeated Adams</a> in the presidential election of 1800. He allowed the Alien Act <a target=”&mdash;blank” href=”http://www.loc.gov/rr/program/bib/ourdocs/Alien.html”>to expire</a>.

Over the past two centuries, the Supreme Court has rejected Jefferson and Madison’s narrow view of federal power over immigration. Congress <a target=”&mdash;blank” href=”https://www.uscis.gov/history-and-genealogy/our-history/agency-history/early-american-immigration-policies”>has enacted</a> a complex series of laws on the subject. Yet states continue to marshal constitutional arguments against federal immigration policies they oppose.

Recent state challenges to President Obama

In 2010, Arizona’s concerns about undocumented immigrants led its lawmakers to enact a state law providing for stricter state enforcement of immigration law. The Obama administration sued the state.

The administration claimed Arizona’s law conflicted with the federal government’s less severe penalties for undocumented immigrants. The Supreme Court <a target=”&mdash;blank” href=”https://supreme.justia.com/cases/federal/us/567/387/opinion3.html”>largely agreed</a>. It noted the “National Government has significant power to regulate immigration.” Therefore, “the State may not pursue policies that undermine federal law.”

In 2012, the Obama administration <a target=”&mdash;blank” href=”https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca”>announced</a> the Deferred Action for Childhood Arrivals program, or DACA. It delayed deportation of some immigrants brought to the U.S. as children and without documentation. Later, the administration <a target=”&mdash;blank” href=”https://www.uscis.gov/sites/default/files/USCIS/ExecutiveActions/EAFlier%E2%80%94DAPA.pdf”>extended the program</a> to protect parents of lawfully present children.

In 2014, Texas and 16 other states challenged the federal policy for parents in court. They claimed the president exceeded his authority under federal immigration laws passed by Congress. A court <a target=”&mdash;blank” href=”http://www.scotusblog.com/wp-content/uploads/2015/11/15-40238-CV0.pdf”>struck down</a> the program for parents and it never went into effect.

After Trump’s inauguration in 2017, Texas and 10 other states <a target=”&mdash;blank” href=”https://www.texasattorneygeneral.gov/files/epress/DACA%E2%80%94letter%E2%80%946%E2%80%9429%E2%80%942017.pdf”>threatened</a> to sue over DACA, too. Later that year, the Trump administration announced <a target=”&mdash;blank” href=”https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca#”>it would rescind</a> it.

Immigrant advocates and the state of California <a target=”&mdash;blank” href=”http://www.scotusblog.com/wp-content/uploads/2018/01/17-1003-opinion-below.pdf”>then sued</a> the Trump administration. They argued the decision was based on a misreading of immigration law. For now, courts have kept the policy in place until the cases are resolved.

California’s challenge to President Trump

Similar federalism dynamics are at play in California’s resistance to the Trump administration. But now the tables are turned. It is the states that are trying to reduce deportations while the federal government seeks to increase them.

In 2017, California passed <a target=”&mdash;blank” href=”https://www.scpr.org/news/2018/03/07/81445/three-immigration-laws-that-sparked-a-trump-admini/”>a series of laws</a> that in some ways mirror Arizona’s attempts to manage immigration with state law. Instead of tasking state officials with enforcing immigration laws, California limits state officials’ enforcement of immigration laws.

Federal agents are free to enforce federal immigration law in California. But there are roughly 12 times more <a target=”&mdash;blank” href=”http://www.ppic.org/publication/law-enforcement-staffing-in-california/”>state and local law enforcement officers</a> in California alone than there are <a target=”&mdash;blank” href=”https://www.ice.gov/careers/faqs#”>federal deportation officers</a> in the entire country. So the federal government wants the help of California’s law enforcement officials. And state cooperation can determine how effective the Trump administration’s immigration policies will be.

The Trump administration’s lawsuit against California is a mirror image of the Obama administration’s 2010 challenge to Arizona. The lawyers for the United States draw liberally on the Arizona precedent. They argue <a target=”&mdash;blank” href=”https://www.justice.gov/opa/press-release/file/1041436/download”>a state cannot</a> obstruct federal immigration law, whether by enforcing its own stricter law or by refusing to help them with enforcement. Notably, localities in Texas made similar obstruction arguments in their challenge to Texas’s state law against “sanctuary cities,” though a court <a target=”&mdash;blank” href=”http://www.ca5.uscourts.gov/opinions/pub/17/17-50762-CV0.pdf”>recently rejected</a> them.

There is an important difference between the Arizona and California cases. The Supreme Court previously <a target=”&mdash;blank” href=”https://supreme.justia.com/cases/federal/us/521/898/case.html”>has held</a> that the federal government cannot “command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Under the Constitution, state officials generally <a target=”&mdash;blank” href=”https://theconversation.com/san-francisco-is-using-a-montana-sheriffs-playbook-to-sue-trump-on-sanctuary-cities-74660″>do not have to follow</a> the federal government’s orders to enforce federal policies, whether those policies deal with <a target=”&mdash;blank” href=”https://supreme.justia.com/cases/federal/us/521/898/case.html”>gun control</a> or <a target=”&mdash;blank” href=”https://supreme.justia.com/cases/federal/us/567/519/”>health care</a>.

This “anti-commandeering” principle applies to federal immigration policy, too. The Trump administration argues California’s laws obstruct, rather than merely fail to assist, immigration enforcement. California will argue the Trump administration is unconstitutionally “commandeering” its state and local officials. As the courts decide this case, they will write another chapter in the long history of federal and state conflict over immigration.

This article was originally published on The Conversation. Read the original article here: <a target=”&mdash;blank” href=”http://theconversation.com/sessions-suing-california-is-the-latest-battle-in-a-centuries-old-war-for-power-over-immigration-93240″>http://theconversation.com/sessions-suing-california-is-the-latest-battle-in-a-centuries-old-war-for-power-over-immigration-93240</a>.

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