California Violates Constitution to Protect Illegal Aliens

The State of California recently passed laws designed to shield illegal aliens residing in California from workplace enforcement actions conducted by federal immigration agents. To stop these new laws, the Trump Administration filed a federal lawsuit, and the American Center for Law and Justice (“ACLJ”) has submitted an amicus (friend-of-the-court) brief supporting the Administration’s efforts. The brief was submitted with the support of more than 65,000 people who have joined the ACLJ’s committee opposed to state actions that violate the United States Constitution.

In our brief, we focus on Assembly Bill 450. AB 450 imposes several prohibitions and requirements concerning workplace enforcement actions that are obstacles to the implementation of federal law. If an employer does not comply with AB 450, and instead complies with federal law, the California Attorney General has promised to prosecute the employer.

Under federal law, an employer may not employ an “unauthorized alien,” that is, an alien who is not lawfully admitted into this country for permanent residence or is not authorized to be employed. The employer must attest, under penalty of perjury, that he has verified that the employee is not an unauthorized alien. The employer must retain the verification form and supporting documentation and make them available for inspection by federal immigration agents.

Under federal law, immigration agents may enter nonpublic areas of a business, if the owner or another person with authority consents, to question employees about their immigration status and to inspect employment records. If the agent does not obtain consent, federal law allows a site inspection to take place based on a search warrant.Once properly admitted to the area, an agent may arrest an individual on the spot if he reasonably believes the individual is an illegal alien who is likely to escape.

AB 450 obstructs the enforcement of federal immigration laws in the following ways:

• AB 450 prohibits employers from voluntarily consenting to allow an immigration enforcement agent to enter nonpublic areas of a place of labor. This provision is contrary to federal law, which allows the employer to consent. Thus, California is depriving employers of their right to consent and is requiring federal agents to obtain a judicial warrant to obtain access to those nonpublic areas even though access is allowed by consent under federal law.
• AB 450 prohibits employers from voluntarily consenting to allow an immigration enforcement agent to access, review, or obtain certain employee records. Federal law allows for such access based on voluntary consent. As such, California is depriving employers of their right to consent and is placing unnecessary burdens on federal agents to obtain a subpoena or court order to gain access to employee records.
• AB 450 requires employers to provide current employees with notice of any upcoming inspection of employee records by federal immigration enforcement agents. This notice provision ensures that employees who are illegally in this country will disappear and avoid detection before the inspection happens, jeopardizing federal law enforcement and, in some cases, public safety. (For instance, the Mayor of Oakland, California, last month warned illegal aliens in the Bay Area about upcoming raids by federal immigration agents. Hundreds of illegal aliens were thereby able to avoid arrest. Three of the illegal aliens who were targeted for those raids, but who avoided arrest, have since been apprehended on charges of robbery/gun crimes, drunk driving, and spousal abuse.)
• AB 450 also prohibits employers from re-verifying the employment eligibility of a current employee. Under this provision, California is prohibiting employers from complying with their federally-imposed obligation to ensure they are not knowingly employing unauthorized aliens. In other words, California is preventing employers from reviewing employee records, which may be in error, and identifying those employees who are not allowed to be legally employed.

Because AB 450 is an obstacle to the enforcement of federal immigration law, it violates the Supremacy Clause of the United States Constitution, which provides that federal law is the “supreme law of the land.” It imposes requirements and burdens on employers and federal immigration enforcement agents that unnecessarily hinder the implementation of federal law.

Just as the United States Constitution forecloses states from issuing their own currency or declaring war, it also forecloses states from attempting to usurp the federal government’s authority over immigration by hindering federal immigration law enforcement efforts. California has intentionally obstructed federal law enforcement efforts by shielding unauthorized aliens from lawful federal workplace immigration enforcement actions. California has also prohibited, rather than encouraged, cooperation with law enforcement, which is bad public policy.

We will keep you posted about this lawsuit and the efforts to stop California’s obstruction of federal immigration law.