Supremacy clause hinders California's resistance to Trump deportation plans

As California and other liberal states gear up to battle President-elect Donald Trump's deportation plans, they face a judiciary that already has ruled for the federal government on a major legal question.

The key provision is Article VI, Clause 2 of the U.S. Constitution, known as the supremacy clause, which holds that federal law prevails over any conflicting state laws. That's an important advantage for the U.S. Department of Justice in battles with states and organizations over immigration.

"The law has gotten harder and more challenging in this area," Eva Bitran, a staff attorney with the American Civil Liberties Union of Southern California, who focuses on immigration enforcement, said in a phone interview.

While she said there are other constitutional arguments to challenge large-scale arrests, "I don't think we will see supremacy clause arguments."

Christopher Hajec, director of litigation for the Immigration Reform Law Institute, an organization that opposes people entering the country without legal permission, said in an email that the supremacy clause also will be a hurdle for sanctuary jurisdictions.

"Harboring illegal aliens, or shielding them from detection, violates federal law," he wrote. "That means state laws ordering state officials to shield illegal aliens from ICE -- for example, by ordering those officials not to tell ICE, when asked, when convicted illegal alien criminals will be released from custody -- would be 'conflict preempted' under the supremacy clause."

With Trump set to take office in three weeks, both sides are anticipating significant battles in court, but officials of the incoming administration will have the advantage of experience from the president-elect's previous term that will make challenges under the Administrative Procedure Act easier to defeat, and legal precedent in the new administration's favor, experts said.

"Expect the incoming administration to be better at writing regulations and complying with procedure, so some procedural attacks should be off the table," said David A. Carrillo, executive director of the California Constitution Center, a research center at UC Berkeley School of Law. "They had four offseason years to train. Let's see if they're any good at this."

Gabriel "Jack" Chin, a professor at UC Davis School of Law, predicts the new administration "will move fast ... and use existing legal doctrines against states opposed to its policies and will advance creative legal arguments to come up with new grounds to challenge state sanctuary policies," he said Monday.

"California has a lot of sophisticated lawyers, in and out of government, who will push back, as do other jurisdictions opposed to harsh immigration enforcement," he added. "The Supreme Court is going to be busy in the next four years."

Carrillo also pointed out that California is not united against Trump's immigration policies, and that some counties or sheriffs may choose to cooperate with federal immigration officials despite a 2017 state law, the California Values Act, that prohibits it unless an alleged criminal meets certain conditions.

Last month, a 9th U.S. Circuit Court of Appeals panel cited the supremacy clause when granting summary judgment for the United States and rejecting a King County, Washington executive order prohibiting operators at Seattle's Boeing Field from servicing U.S. Immigration and Customs Enforcement (ICE) charter flights.

"In recognition of the federal government's independence from state control, the intergovernmental immunity doctrine prohibits states from 'interfering with or controlling the operations of the Federal Government,'" 9th Circuit Judge Daniel A. Bress, a Trump appointee, wrote for the panel. U.S. v. King County et al., 2024 DJDAR 10961 (9th Circ., filed May 25, 2023).

It follows a 9th Circuit decision in 2022 that blocked a California law to phase out privately operated federal immigration detention facilities. The decision was supported by judges appointed by presidents of both parties.

"Whether analyzed under intergovernmental immunity or preemption, California cannot exert this level of control over the federal government's detention operations," wrote 9th Circuit Judge Jacqueline H. Nguyen, an appointee of President Barack Obama who wrote for an 8-3 majority. "AB 32 therefore violates the Supremacy Clause." The Geo Group Inc. et. al. v. Newsom et al., 2022 DJDAR 10195 (9th Circ., filed Nov. 6, 2020).

Both cases were argued by the Biden administration, joined in the California case by The Geo Group Inc., one of the leading private prisons in the country.

Senior U.S. District Judge Robert A. Kirsch of New Jersey, an appointee of President Joe Biden, declared a similar state law unconstitutional in August 2023 in a case filed by another private prison operator, CoreCivic Inc.

New Jersey has appealed that decision to the 3rd U.S. Circuit Court of Appeals, and the Biden administration joined the case to support CoreCivic. Oral arguments are pending, and Trump may have been sworn in by the time they happen. CoreCivic Inc. v. Governor of New Jersey et al., 23-2598 (3rd Circ., Sept. 7., 2023).

While Gov. Gavin Newsom called a special session of the state Legislature to gear up for legal battles against Trump administration efforts, the supremacy clause will loom large as a defense for U.S. Department of Justice lawyers -- especially as they build on legal efforts by their Democratic predecessors.

Carrillo said the supremacy clause "is always an insurmountable obstacle -- when it applies. So the better state strategy is to challenge its application" and question whether there is a conflict in the first place.

"This avoidance strategy might fail -- but it gives states an argument, and sometimes that's all you need," he added.

ICE already is seeking permission to build a new detention center in Northern California. Attorney General Rob Bonta, in a recent interview, conceded the state may not be able to stop it based on the 9th Circuit's decision in Geo Group.

"It's a matter of federal jurisdiction," Bonta told CalMatters. "I disagree, but my office's disagreement was considered, and the court determined that it was a federal issue."