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(As an aside, I should note that the issue has generated some conflicts as well; for example, some less liberal cities in solidly blue states have tried to politically distance themselves from state sanctuary policies.) Moving from political rhetoric to constitutional law, a lawsuit filed by the Trump administration against the State of California earlier this spring helps bring into relief the legal stakes in the sanctuary battles.

But even as the lawsuit seeks to attach some legal flesh onto the political bones of the dispute, the litigation also highlights two recurring problems with the debate so far: (1) the term “sanctuary” is too broad, as a legal matter, insofar as it is used as an umbrella to cover many state and local actions that are very different (legally speaking) from one another; and (2) the legal positions advanced by the federal administration and ambitious states like California are both too extreme and doctrinally untenable.

Or imagine, in the 1970s, that states that disagreed with newly enacted federal environmental laws punished companies that voluntarily provided pollution data to the EPA that might be used in the creation and enforcement of administrative regulations to make the statutes effective.

As I explain in more detail below as I parse the complaint in the lawsuit, I very much hope that as these matters begin receiving attention in the judicial forum, they will be analyzed with much more precision and doctrinal care, such that some of the bluster on both sides will ultimately fall away.

The complaint, filed in federal court in Sacramento in the Eastern District of California about eight weeks ago, asserts claims by the federal government against the State of California for three distinct state legislative enactments that fall under the “sanctuary” rubric: (1) California’s “Immigrant Worker Protection Act” (IWPA); (2) California Assembly Bill (AB) 103, relating to investigation powers of the California Attorney General with respect to certain immigration detention facilities; and (3) California Senate Bill (SB) 54, which limits state and local enforcement discretion to provide the federal government information relating to persons released from state detention who may be of interest to federal immigration authorities.

Investigating federal officials to see whether they are violating federal constitutional norms is something in which states do indeed have “a lawful interest.” (Note that in my discussion of the IWPA above, it was crucial to my prediction that the feds should win that the feds were within their constitutional power in enforcing the immigration laws in the workplace.)None of this is to say AB 103 is necessarily valid.

At this point, I think two key questions need to be explored.

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