Last week, California authorized the potential inclusion on the 2018 ballot an Initiative that would support CalExit, a movement for Ca to secede from the United States. In my post on the subject, “CaIifornia Secession, What a STUPID Idea!”, I speculated whether this movement was the result of Legalized Marijuana smoking, or hunting for hallucinatory “shrooms”. Now, we have something new.
From CBS Los Angeles:
California may prohibit local law enforcement from cooperating with federal immigration authorities, creating a border-to-border sanctuary in the nation’s largest state as legislative Democrats ramp up their efforts to battle President Donald Trump’s migration policies.
The legislation is scheduled for its first public hearing Tuesday as the Senate rushes to enact measures that Democratic lawmakers say would protect immigrants from the crackdown that the Republican president has promised.
Have the “shrooms” invaded the Sacramento Capital and taken over all rational thought? Or has “Invasion of the Body Snatchers begun?
The Sanctuary State Plan
The Sanctuary State Plan would prohibit both state and local law enforcement agencies from cooperating with Federal Immigration authorities. The agencies would refuse to release information about illegals in custody and would not turn illegals over for deportation, criminal prosecution, or other activities.
Another part of the plan would be to spend money that California does not have to defend illegals from deportation hearings. The illegals would be provided with free counsel to stop the hearings, and to keep the illegals in CA.
What are California politicians thinking?
US Constitution and Immigration Enforcement
The US Constitution does not exclusively address immigration policies and the word “immigration” does not appear in it. So we must look closer for other references to determine what powers the Federal Government has with regard to immigration.
First, the Supreme Court has ruled that the Congress has the power to regulate naturalization. Article I, Section 8, Clause 4 of the Constitution empowers Congress to
“establish an uniform Rule of Naturalization”
in other words, to make rules that would allow foreign persons the chance to become citizens. This clause includes the power to regulate immigration (Hampton v. Mow Sun Wong, 426 U.S. 88 ).
Since Congress has the power to regulate immigration, what has Congress done to regulate immigration?
Modern immigration law
Modern Immigration Law is begins with the Immigration and Nationality Act of 1952 (INA). This law and others following determine whether a person is an alien or citizen, and details the rights, duties, and obligations each have. How aliens gain residence or citizenship within the United States is also the purview of these laws.
The INA eliminated previous race-based quota standards and replaced them with nationality-based quotas. To enforce the quotas, the Immigration and Naturalization Service (INS) was formed. (This is a critical feature when considering President Trump’s actions on current immigration
The INA defines an “alien” as any person lacking citizenship or legal status in the United States. Aliens may be residents or non-residents, immigrants or non-immigrants, documented or undocumented aliens (“illegal”).
Documented aliens have the proper records and identification for admission into the U.S. Undocumented aliens do not.
The Immigration Reform and Control Act (IRCA) of 1986 was enacted to curtail illegal immigration. It toughened sanctions on employers who hired illegal aliens, denied them welfare benefits, and gave amnesty to others. An associated regulation, The Immigration Marriage Fraud Amendments of 1986 restricted the practice of marrying to obtain citizenship. The Immigration Act of 1990 equalized the allocation of visas across foreign nations.
These and other enacted laws by the Congress reflects their empowerment to enact immigration laws and to set immigration policy.
Presidential Authority for Refugees
The Refugee Act of 1980 established U.S. laws pertaining to immigrants. Under the Act, a “refugee” is an alien with a fear of persecution if he returns to his place of origin. The persecution may be the result of religion beliefs, race, nationality, membership in certain groups, or political affiliations.
Temporary refugee status is not allowed by either the Act or the Geneva Convention.
The President retains the ultimate decision-making authority when determining the number of refugees to allow into the country during a given year. His power does not extend beyond refugee policy. Except for questions regarding aliens’ constitutional rights, the courts have generally found the immigration issue as nonjusticiable, defined as “not c
8 USC 1185 is the law providing authority for the President to act.
(a) Restrictions and prohibitions – Unless otherwise ordered by the President, it shall be unlawful –
1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;
2) for any person to transport or attempt to transport from or into the United States another person with knowledge or reasonable cause to believe that the departure or entry of such other person is forbidden by this section;6) for any person to forge, counterfeit, mutilate, or alter, or cause or procure to be forged, counterfeited, mutilated, or altered, any permit or evidence of permission to depart from or enter the United States;
(d) Nonadmission of certain aliens – Nothing in this section shall be construed to entitle an alien to whom a permit to enter the United States has been issued to enter the United States, if, upon arrival in the United States, he is found to be inadmissible under any of the provisions of this chapter, or any other law, relative to the entry of aliens into the United States.
8 USC 1184 provides the Attorney General of the US the authority to act to enforce immigration.
(1) The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe………to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.
SECTION 1-101. Delegation of Authority. The Secretary of State and the Attorney General are hereby designated and empowered to exercise in respect of Iranians holding nonimmigrant visas, the authority conferred upon the President by section 215(a) (1) of the Act of June 27, 1952 (8 USC 1185), to prescribe limitations and exceptions on the rules and regulations governing the entry of aliens into the United States.
- President Obama’s 2012 Deferred Action for Childhood Arrivals
- President George Herbert Walker Bush, who in 1990 announced a blanket deferral of deportations for 1.5 million spouses and children of unauthorized people.rs on immigration policy by Republican presidents:
- 1956. President Dwight Eisenhower allows 923 orphans to settle in the U.S.
- 1956-58. Eisenhower allows 31,915 Hungarian refugees to stay after Soviet invasion.
- 1959-72. Presidents Eisenhower through Richard Nixon let 621,403 Cuban exiles stay.
- 1977-82. Presidents Jimmy Carter, a Democrat, and Reagan, let 15,000 Ethiopians stay.
- 1981-87. President Reagan allow 7,000 Polish refugees stay after Soviet-led crackdown.
- 1987. President Reagan allows 100,000 children of non-citizens to stay who were not affected by the 1986 law he signed granting amnesty to 3 million immigrants.
- 1989. President Bush allows 80,000 Chinese students stay after Tianenmen Square, which he formalized a year later suspending deportations and granting work permits.
The Executive Orders are not just about allowing refugees and others to stay. Orders have also included restricting immigration from countries and also under international actions.
- President Jimmy Carter announced sanctions against Iran in 1980, including the cancellation of visas for Iranian citizens.
- Obama used section 212(f) of the Immigration and Nationality Act of 1952 to stop “immigrants or nonimmigrants” from emigrating to the U.S. under a broader ban instituted by the United Nations in 2011. The Order covered anyone under a UN travel ban; anyone who violates any of 29 executive orders regarding transactions with terrorists, those who undermine the democratic process in specific countries, or transnational criminal organizations.
Obama’s executive actions on stopping immigration have involved people helping Iran and Syria, predominately Muslim countries.
So, how does all of this apply to California?
California and Immigration/Sanctuary State and Cities
For more than a decade now, California has “entertained” Sanctuary Cities where the local authorities and police have not cooperated with Federal authorities in immigration enforcement. Los Angeles, San Diego, San Francisco and other cities deliberately ignore demands for information on illegal criminals, allowing them to stay in local jails until their release dates, wherein they go back into the local communities and continue their criminal ways, often resulting in innocent’s deaths.
Now, State politicians are advancing an agenda making the entire state a Sanctuary State, and therefore not cooperating with Federal authorities on immigrant enforcement.
Proponents of the Sanctuary State are proclaiming that this is justified under Article 10 of the Constitution and also 14th Amendment issues.
Under the Article 10 argument, proponents claim that there is no mention of immigration in the Constitution, therefore immigration control is not an “enumerated power” of the Federal Government and States Rights comes into play. The State can set its own immigration enforcement polices under this theory.
Under the 14th Amendment, proponents will claim that when the 14th Amendment was passed, there were no immigration laws present at the Federal government level. They misrepresent “birth right” citizenship to proclaim that the State can again ignore Federal enforcement policies in toto.
As shown by Federal Statutes, rulings and precedents, California has NO authority to ignore Federal Immigration Law. The Constitution and subsequent enacted laws and precedent all show that the Federal government has full responsibility for setting Immigration Policy and Goals. Nowhere is any state allowed to set their own policies.
The question becomes…………”What are the available options of the Federal government to force California to bend to the rule of law and Immigration Enforcement policies”?
Federal Government Options
Whether California imposes the State Sanctuary, or continues to allow the City Sanctuaries, the Trump Administration will respond. Assuming that the State Sanctuary provision will pass and Jerry Brown will sign it, the following Federal response will likely occur.
First, AG Sessions will require that all immigration enforcement agencies will act to obtain information on illegals, place immigrant holds, and attempt to take custody of illegals in the local jails and state prisons. This first effort will be met with absolute failure. The cities and states will ignore the Federal requests.
Next, AG Sessions will likely send Cease and Desist letters to the State and to all city and county officials. There will be a demand that the officials comply with all immigration laws and policies. Again, this will be met with failure. Most cities and the State will ignore the demand.
Next, AG Sessions will file a Federal Lawsuit against California and the cities. This will be a drawn out process, likely ending in the US Supreme Court.
While waiting for the Courts to act, Sessions can begin to stop funding of various programs that are affected by illegals. Funding could involve Courts, Police, welfare and other programs. This would result in a major financial hardship to the State, Cities and Counties who have not cooperated with the Feds.
Unfortunately, the funding loss will take time to affect State and Local finances. So to speed up action, the AG can go with the nuclear option. This option would be to direct Federal Officers in California to begin to arrest State and Local officials responsible for not following Federal Immigration law.
The actions that the Federal government can take against California will take time to be resolved. Likely, the effort will take many years. In the meantime, the Administration continues to enforce Immigration Law in all other states, while waiting for resolution.