Sujit Choudhry Explains the Battle Between Trump and California

We recently asked constitutional law expert Sujit Choudhry for his analysis on the current conflicts between the Trump Administration and his home state of California. Here’s a breakdown of all the lawsuits between Trump and California and what the Constitution and previous court cases say about each.

The Trump administration and the leadership of the State of California don’t share many goals or priorities. For example:

• Donald Trump campaigned on the promise of mass deportations; California is home to more undocumented immigrants than any other state and seems perfectly happy to have them.
• Trump pulled out of the Paris climate agreement; California Governor Jerry Brown has said that nothing matters more to him than combatting climate change.
• Trump Attorney General Jeff Sessions is turning the “war on drugs” into a war on marijuana; California was the first state to legalize medical marijuana and is one of nine that has legalized recreational marijuana.

Brown didn’t pull any punches in his early responses to the election of President Trump. In December, just weeks after the 2016 election, Brown addressed a large gathering of scientists, assuring them that the state’s efforts to combat climate change would continue. In response to concerns that a Trump government would de-fund climate-research satellites, Brown reportedly announced that if Trump turned off the satellites “California will launch its own damn satellite!”

A month later, just days after Trump’s inauguration, Brown referenced state laws that allowed undocumented immigrants to work, attend college, and obtain driver’s licenses. He said, “We may be called upon to defend those laws, and defend them we will. And let me be clear: we will defend everybody — every man, woman, and child — who has come here for a better life and has contributed to the well-being of our state.”

The reality since inauguration day has been mixed. Though California has sued to block several Trump initiatives, Brown has also engaged in a balancing act. He pushed back on his own party to revise proposed sanctuary state laws, and told The New Yorker’s Connie Bruck that the final version had been “written carefully to recognize the supremacy of federal law.”

Despite those efforts at diplomacy, the tensions between the Trump administration and the state of California continue to mount — as do the number of lawsuits between the state and federal governments.

The California v. Trump / Trump v. California Lawsuits

Since Donald Trump’s inauguration, the state of California has filed, joined, or intervened in at least 29 lawsuits against the federal government. These challenges span a wide range of topics, including:

• Trump’s “travel ban”
• The termination of the DACA program
• Construction of a border wall in two California counties
• The denial of public safety funding to sanctuary cities
• Student loan protections for students defrauded by for-profit schools
• Rollbacks of environmental regulations
• Banning transgender people from military service
• The planned citizenship question on the 2020 census

Although the state of California has been very active in using the courts to push back against Trump administration actions it sees as unlawful or unconstitutional, not all of the conflict between the state and the federal government has originated with the state.

In March, the Trump administration files a lawsuit challenging provisions of California’s sanctuary laws. Then, in April, the administration filed suit to challenge a state law that requires the federal government to offer a state commission the right of first refusal before selling federal lands in the state.

The Core Constitutional Question

While these lawsuits cover a wide range of specific laws and affected parties, most involve a single core issue: the scope of state versus federal authority in lawmaking. Sujit Choudhry, Founder of the Center for Constitutional Transitions, says that because so many of the lawsuits hinge on questions of authority under the U.S. Constitution, the resolution of these cases could have a significant and lasting impact on how powers are allocated to the state and federal governments.

Choudhry noted that, ironically, a positive outcome for either party today may lead to a less-welcome landscape in the future, since Democrats and Republicans have largely swapped positions on the scope of authority issue. Traditionally, the political left has looked to the federal government to create regulations and extend protections that states must honor. From the enactment of the Civil Rights Act of 1964 to the passage of the Affordable Care Act, expansive interpretation of federal powers has been viewed as a means of advancing progressive causes with or without the cooperation of state governments.

Choudhry also observed that conservatives, on the other hand, have traditionally advocated for states’ rights, pushing to keep the federal government small and leave decision-making power in the hands of individual states. Now, the Republican administration and the leaders of progressive states find themselves advocating for a division of powers they may not want or believe in, because it is the only way to advance the substantive law and policy most valuable to each.

Learn More: Sujit Choudhry speaks out on Spain and Catalonia

A Look Inside the Litigation

An analysis of all of the litigation filed to date between the Trump administration and the state of California could fill a book. Here is a sample of cases to provide insight into the legal and philosophical conflicts driving the tense relationship between the federal government and the coastal state, with Sujit Choudhry’s observations.

The Sale of Federal Lands within the State

Although it was the Trump administration that filed suit, there’s a fair argument to be made that California filed the opening salvo in this case. The lawsuit seeks to strike down a statute specifically enacted to prevent the Trump administration from selling off federal lands within the state of California.

Although the law only requires that the federal government offer a California commission a right of first refusal before selling or transferring federal lands within the state, there’s a strong argument that the statute exceeds state authority.

Sujit Choudhry notes that Article IV, Section 3 of the U.S. Constitution provides in part, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”

In addition, the 1850 law admitting California to the Union included this “express condition”:

…that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned.

Ultimately, California seems destined to lose this battle. But, depending on the path the case takes, the state could indirectly win the war. If the case winds its way through appeals and is taken up by the U.S. Supreme Court, the ruling could arrive in a post-Trump America.

Sanctuary Laws

Despite Governor Brown’s efforts to keep sanctuary laws within the bounds of federalism and his signing day announcement that the “bill does not prevent or prohibit Immigration and Customs Enforcement or the Department of Homeland Security from doing their own work in any way,” the Trump administration argues the state has gone too far.

This case may be too close to call; a fair reading of the laws in question and the applicable Constitutional issues might well result in a split. The law prohibiting state and local law enforcement from determining and reporting immigration status of arrestees may well stand up to the test. The law doesn’t impede federal operations; rather, it simply opts for state and local governments to not participate. And, the federal government has no authority to force state officials to help do its job. Arguably, this provision doesn’t enter into the federal sphere at all — it simply addresses the actions of state and local law enforcement officers and how state and local resources are expended.

One twist that may impact the outcome of litigation on the provision is that a handful of local government bodies within California have entered the suit on the side of the Trump administration, objecting to being prevented from cooperating with ICE.

The other two provisions appear to be on shakier ground. In particular, provisions prohibiting employers from cooperating with federal workplace investigations appear to cross the line in two different ways. First, unlike the provisions regarding local law enforcement, this statute imposes penalties on private citizens and businesses cooperating with federal officials. And, although the law specifies that it is not intended to interfere with the employer’s ability to comply with federal law, there are apparent contradictions. Second, private employers arguably have a liberty interest in deciding whether and to what degree they will cooperate with federal agents.

Finally, the provision empowering the state Attorney General to investigate the actions of federal immigration officials seems innocuous on its face. However, in the context of other sanctuary law provisions, this could be interpreted as an attempt to chill federal law enforcement activity in the state.

Funding for Sanctuary Cities

Sujit Choudhry points out that although underlying policy issue is the same, the sanctuary city litigation differs significantly from the sanctuary law suits. The core question at issue in the sanctuary city suit — filed by the state last year — is when denial of federal funding based on state action violates the U.S. Constitution. The issue is nuanced, as tying federal funding to compliance on certain issues has been upheld in the past and the precise limits remain unclear.

In March, a federal judge in San Francisco declined to enter a preliminary injunction that would have forced the federal government to release funds pending resolution of the case. However, that ruling isn’t necessarily a sign of things to come. Obtaining a preliminary injunction requires a showing that the plaintiff is likely to prevail at trial, and that without the injunction, the plaintiff will suffer irreparable harm. The judge ruled that the injury threatened was not irreparable.

The Citizenship Question on the 2020 Census

Sujit Choudhry has written before about the potential impact of the Trump administration’s plan to include a question about citizenship on the 2020 census. Both New York and California filed suit to keep the question off the census. California Attorney General Xavier Becerra argues that the question will prevent the federal government from fulfilling its Constitutional mandate to count every person in the United States. Preliminary data suggests that many immigrants will be fearful of responding to the census, given the Trump administration’s prior treatment of immigrants.

This case may live or die on standing, without reaching the substantive issue. However, California has a viable argument that the potential loss of federal funding and representation in Congress gives the state standing to challenge the inclusion of the question. The state may also be able to achieve its goal without actually winning the case. With canvassing for the census slated to begin in August of 2019, ongoing litigation could prevent the question from being included on the form, even though the court never enters a final ruling against it.

Termination of the DACA Program

Although the case will likely be winding its way through the courts for quite some time, California already scored a significant victory in its lawsuit seeking to block termination of the Deferred Action for Childhood Arrivals (DACA) program.

Sujit Choudhry explains that Trump sought, by executive order, to rescind an Obama-era order opening up increased employment and educational opportunities to childhood arrivals who chose to register and comply with program requirements, and relieving these young adults of the uncertainty that comes with being undocumented in the only country you have ever known. About 800,000 young adults registered, and the program was a great success in advancing economic opportunities, level of education, and even tax contributions.

However, as Sujit Choudhry observes, Trump’s decision to terminate the program left those registrants vulnerable — arguably more vulnerable than they’d been before registration, since they’d now brought themselves to the attention of the federal government and provided their home addresses.

In January, a judge entered an injunction that required the administration to maintain core aspects of the program while litigation proceeds. Most significantly, the administration must allow current participants to renew their protected status.

Ultimately, Professor Choudhry says, this question may be decided by the U.S. Supreme Court. However, like the census issue, the DACA problem may time out. The Trump administration challenged Congress to replace Obama’s executive order with a statutory program similar to DACA, and that hasn’t happened. But, if the 2018 interim elections tip the scales toward the Democratic side of the aisle, Congress may well render the issue moot if it decides to act.

The Battle over Greenhouse Gases

The conflict over greenhouse gases is playing out on two levels. California is one of 15 states suing the Environmental Protection Agency (EPA) for alleged violations of the Clean Air Act. The states say that the EPA has neglected its duty to control methane gas emissions from gas and oil. This neglect, they argue, puts public health and the environment at risk.

The EPA ignored a notice from the 15 attorneys general in June, advising the agency that they would file suit if the situation weren’t remedied within 180 days. Though the Trump EPA took no corrective action in that time, it went on the offensive through another channel.

Because federal law pre-empts state regulation of environmental issues such as air pollution, California can’t set higher standards than the federal law unless the federal government allows it to do so. Currently, California has a waiver that allows the state to set and enforce more stringent air pollution standards than those set forth in the Clean Air Act. However, Scott Pruitt has stated that California “is not the arbiter of these issues.” In early April, the EPA commenced the process of challenging California’s waiver. California’s Attorney General has indicated that the state is prepared to fight, suggesting that another lawsuit may be on the horizon.

Federal v. State Litigation Overview

With so many different claims in play, it seems inevitable that the Trump administration and the state of California will each win some and lose some. A lot of time and money will be invested on both sides. Implementation of some laws will be delayed for months, or even years. The substantive laws at issue in each case may fall away in time — perhaps in a fairly short period of time — as administrations change and the balance of power in Congress shifts. Some may change shape or dissolve altogether before a final ruling is entered.

However, as Sujit Choudhry observes, it’s likely that no one will be left unscathed. The deterrent effect of the citizenship-related census question may already have occurred, impacting responses among immigrants regardless of whether the question is ultimately included. DACA registrants have been thrown back into uncertainty just a few years after finally achieving a new level of participation in the country they call home. The methane gas emissions aren’t being managed. And, when the dust settles, the victor may be left holding little of consequence but a ruling allocating state and federal powers in a manner that will work against its interests in the future.

For more information on Sujit Choudhry follow him on Facebook, Twitter or YouTube.

Originally published at patch.com on May 14, 2018.