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But even as the lawsuit seeks to attach some legal flesh onto the political bones of the dispute, the litigation also highlights two recurring problems with the debate so far: (1) the term “sanctuary” is too broad, as a legal matter, insofar as it is used as an umbrella to cover many state and local actions that are very different (legally speaking) from one another; and (2) the legal positions advanced by the federal administration and ambitious states like California are both too extreme and doctrinally untenable.As I explain in more detail below as I parse the complaint in the lawsuit, I very much hope that as these matters begin receiving attention in the judicial forum, they will be analyzed with much more precision and doctrinal care, such that some of the bluster on both sides will ultimately fall away.These detention facilities , especially the ones operated by local governments in the state, are (unless Congress has preempted the entire field, which is not something the complaint really demonstrates) subject to state as well as federal regulation, and if California has reason to believe state law violations are occurring distinctively at these facilities, it can direct inspection resources accordingly.Second, even as to violations of federal (rather than state) constitutional norms, states have an important whistle-blowing and remedial role to play. § 1983, which provides a federal cause of action against operatives of state and local government who violate federal constitutional law.Yet when it comes to managing explicit photographs, technology generally has not been our friend.Mobile camera rolls seem to not take the existence of nudes into account, as anyone who ever stumbled across an odd penis while scrolling through a friend’s device can tell you.

Investigating federal officials to see whether they are violating federal constitutional norms is something in which states do indeed have “a lawful interest.” (Note that in my discussion of the IWPA above, it was crucial to my prediction that the feds should win that the feds were within their constitutional power in enforcing the immigration laws in the workplace.)None of this is to say AB 103 is necessarily valid.The complaint, filed in federal court in Sacramento in the Eastern District of California about eight weeks ago, asserts claims by the federal government against the State of California for three distinct state legislative enactments that fall under the “sanctuary” rubric: (1) California’s “Immigrant Worker Protection Act” (IWPA); (2) California Assembly Bill (AB) 103, relating to investigation powers of the California Attorney General with respect to certain immigration detention facilities; and (3) California Senate Bill (SB) 54, which limits state and local enforcement discretion to provide the federal government information relating to persons released from state detention who may be of interest to federal immigration authorities.I take up each of the three state enactments—and the major issues raised therein—in turn. provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor [unless] the immigration enforcement agent provides a judicial warrant [or consent is] otherwise required by federal law.” This, and similar provisions of the California statute, are backed up by meaningful sanctions; employers who voluntarily cooperate with the feds are subject to an escalating schedule of fines in the thousands of dollars per violation.Although there are exceptions to the prohibition on information disclosure in SB 54, the feds argue that the statute’s general ban on information sharing nonetheless hinders the “cooperation between federal and state officials” that has been “an important feature of the immigration system.” For example, this is why, the feds say, Congress passed 8 U. If local officials are not able to publicly and credibly proclaim and publicize that they will not provide information (or other support) to the feds, undocumented persons may clam up or fail to seek health and education services (whether or not the undocumented persons know the details of any support the locals provide), and the resulting possible increases in unsolved crime and public health problems may be blamed by the body politic on local officials (because they are generally the most visible level of government as to these matters) rather than the federal architects of § 1373 and similar federal commands.Or, at least, I believe this corruption of accountability is similarly as plausible as it was in , the feds should and will likely win on one (IWPA), should and likely will lose on another (SB 54), and may lose at least in part on the third (AB 103).

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