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Attorney General Barr Brings Bluster, Not Substance, to a New Attack on State Authority

Attorney general announces round of lawsuits to confront resistance of ‘sanctuary cities’” by David Shortell and Caroline Kelly, CNN, February 10, 2020

Last week, the U.S. Department of Homeland Security (DHS) took sweeping action to prohibit New York state residents from participating in a suite of Trusted Traveler programs designed to enhance security and efficiency. As lawsuits challenging the decision begin to roll in, new information is suggesting that DHS likely adopted the policy to punish the state for enacting its so-called Green Light Law—which extends driver’s licenses to all state residents, regardless of immigration status—and not out of any genuine security concern.

The same may be true of a new lawsuit announced by U.S. Attorney General William Barr on February 10—part of a set of lawsuits also challenging California law and an executive order issued by King County, Washington—challenging a New Jersey policy that generally restricts local, county, and state officials from sharing certain information with DHS in the absence of a judicial warrant or court order. In the past, the Trump administration has argued that such policies violate 8 U.S.C. 1373, a provision in immigration law that prohibits states and localities from limiting the sharing of certain information with federal immigration officials. But because such claims have badly overstated exactly how expansive Section 1373 really is, courts have strongly rejected that argument. Left without that argument, the federal government observes that a separate provision in federal immigration law—8 U.S.C. 1357(g)(10)(B)—permits states and localities to cooperate in certain ways with federal immigration officials, even in the absence of the type of express agreement that is described earlier in that same subsection of the law. But the fact that the law authorizes states and localities to cooperate does not mean that states and localities may be coerced into doing so.

Left without a real argument that the New Jersey policy directly conflicts with any provision of federal law, the attorney general’s challenge is instead based on only a general sense that “[f]ederal law generally contemplates that such aliens will serve their state or local criminal sentences before being subject to removal, but then will be taken into federal custody.” Therefore, the lawsuit claims, federal law preempts any state or local actions that obstruct or conflict with federal immigration enforcement efforts. That is a gross mischaracterization of the preemption doctrine and, if accepted, would allow the federal government to commandeer state law enforcement resources to gain information that federal law itself does not require the state to provide.

An administration that is committed to the rule of law must show fidelity to the law. But time and time again, the current administration shows utter disregard for the law in order to serve political or ideological interests. For more on how to restore the rule of law by building a system that truly works, see CAP’s report: “Restoring the Rule of Law Through a Fair, Humane, and Workable Immigration System.”