California back on the state nullification wagon to protect illegal aliens

California is resurrecting the discredited Nullification Doctrine that states can nullify and not obey federal law they do not agree with.

In 1832, South Carolina passed the Nullification Ordinance  that stated that the Federal Tariffs of 1828 and 1832 were "null, void, and no law, nor binding upon this State, its officers[,] or [its] citizens."

The basis for the nullification theory is that the federal union was a compact of sovereign states.  The federal government was the states' agent with specified, delegated powers.  Many agree that the Constitution gave the federal government only specific enumerated powers, and not a general mandate to pass laws.  But the Nullification Doctrine goes further to state that the states have authority to determine when the federal government exceeded its powers and that the states can declare acts to be "void and of no force" in their jurisdictions.

It is legitimate and within our constitutional framework for a state or other local government, or any person, to challenge in federal court any federal law as unconstitutional.  It is not within our system that a state or any person can decide which federal law to obey.  But that is the reasoning of extremists such as those who refuse to pay income tax, or sanctuary cities and states that refuse to obey federal immigration laws.  This is distinguishable from those who choose civil disobedience to protest a law they view as unjust and agree to bear the consequences of civil disobedience.

California passed an "Immigration Worker Protection Act," effective January 1, 2018, which is based on the Nullification Doctrine.  The act requires the federal government to comply with California law for California employers to detain "employees," such as obtaining a warrant and notifying the employees of an audit to verify employment status.

The key points of the act are that the federal government must:

  • Ask for a warrant or subpoena before granting ICE access to a worksite or employer documents or information.
  • Notify employees before an audit of employee records such as I-9 forms, by hand if possible, within 72 hours of receiving notice of the inspection.  If the employee is unionized, written notice must simultaneously be provided to the collective bargaining representative.
  • Provide employees with a copy of the inspection results, by hand if possible, within 72 hours of receipt[.]
  • Employers will be prohibited from re-verifying the employment eligibility of a current employee unless specifically ordered to do so by federal law[.]

The notice must be hand-delivered if possible[;] otherwise[,] use mail or email.

The notice must be hand-delivered if possible; otherwise, use mail or email.

This act is aimed at protecting illegal aliens – or, as California refers to them, "immigration workers" and "undocumented immigrants" – from enforcement of federal immigration laws.

This act clearly violates the supremacy clause of our Constitution.  California is legislating the conditions under which federal immigration laws can be enforced in the state, yet immigration policy is solely within the jurisdiction of the federal government.  This act is similar to a state passing a law specifying how the IRS can examine taxpayers, or how OSHA agents may inspect workplaces, or how the FBI may question resident of a state.

In 2010, Arizona passed a law requiring state and local police to investigate the immigration status of anyone they reasonably suspected of being an illegal alien.  The Obama DOJ  promptlysued Arizona.  Attorney General Holder stated: "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves[.]"

In Arizona, et al. v. United States (2012), the Supreme Court allowed the police to check on immigration status but struck down most of the law because of where it conflicts with federal law.  It struck down the sections that added criminal penalties where there were no federal criminal penalties.   It re-affirmed these basic principles:

  1. The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.
  2. Unlawful entry and unlawful reentry into the country are federal offenses.  Once here, aliens are required to register with the federal government and to carry proof of status on their persons.  Failure to do so is a federal misdemeanor.
  3. ICE officers are responsible "for the identification, apprehension, and removal" of illegal aliens from the United States.
  4. The federal government has occupied the field of alien registration.  This means federal law preempts state law.

Arizona enacted stricter laws than the federal laws because of the effects in Arizona of illegal immigration and the desire to protect Arizona residents.  Arizona's law was consistent with the federal immigration laws in preventing illegal immigration and locating and deporting those who violate federal immigration laws.  Arizona's laws should have been upheld in their entirety, because they did not weaken federal immigration laws, but added state procedures to enforce federal immigration laws.

But California is weakening federal law because it gives illegal immigrant workers greater protection than under federal law for the apprehension and removal of illegals.  The California law is not consistent with the purpose and premise of the federal immigration laws because California law imposes restrictions on how federal officials can enforce federal immigration laws in California.

For example, the California attorney general, Xavier Becerra, announced that California will prosecute and fine employers who cooperate with federal ICE officials and do not follow the California restrictions effective January 1, 2018:

It's important, given these rumors that are out there, to let people know – more specifically today, employers – that if they voluntarily start giving up information about their employees or access to their employees in ways that contradict our new California laws, they subject themselves to actions by my office.  We will prosecute those who violate the law.

Seems as if Becerra wants a confrontation with President Trump and the federal government.  He must have ambitions to run for governor or senator.

The California law is clearly unconstitutional.  The Sessions DOJ should move quickly to end this for the protection of neglected California legal residents.  The DOJ should file criminal charges, starting with Becerra, against any state agent who interferes with or threatens federal officials who are following federal immigration laws. 

California is resurrecting the discredited Nullification Doctrine that states can nullify and not obey federal law they do not agree with.

In 1832, South Carolina passed the Nullification Ordinance  that stated that the Federal Tariffs of 1828 and 1832 were "null, void, and no law, nor binding upon this State, its officers[,] or [its] citizens."

The basis for the nullification theory is that the federal union was a compact of sovereign states.  The federal government was the states' agent with specified, delegated powers.  Many agree that the Constitution gave the federal government only specific enumerated powers, and not a general mandate to pass laws.  But the Nullification Doctrine goes further to state that the states have authority to determine when the federal government exceeded its powers and that the states can declare acts to be "void and of no force" in their jurisdictions.

It is legitimate and within our constitutional framework for a state or other local government, or any person, to challenge in federal court any federal law as unconstitutional.  It is not within our system that a state or any person can decide which federal law to obey.  But that is the reasoning of extremists such as those who refuse to pay income tax, or sanctuary cities and states that refuse to obey federal immigration laws.  This is distinguishable from those who choose civil disobedience to protest a law they view as unjust and agree to bear the consequences of civil disobedience.

California passed an "Immigration Worker Protection Act," effective January 1, 2018, which is based on the Nullification Doctrine.  The act requires the federal government to comply with California law for California employers to detain "employees," such as obtaining a warrant and notifying the employees of an audit to verify employment status.

The key points of the act are that the federal government must:

  • Ask for a warrant or subpoena before granting ICE access to a worksite or employer documents or information.
  • Notify employees before an audit of employee records such as I-9 forms, by hand if possible, within 72 hours of receiving notice of the inspection.  If the employee is unionized, written notice must simultaneously be provided to the collective bargaining representative.
  • Provide employees with a copy of the inspection results, by hand if possible, within 72 hours of receipt[.]
  • Employers will be prohibited from re-verifying the employment eligibility of a current employee unless specifically ordered to do so by federal law[.]

The notice must be hand-delivered if possible[;] otherwise[,] use mail or email.

The notice must be hand-delivered if possible; otherwise, use mail or email.

This act is aimed at protecting illegal aliens – or, as California refers to them, "immigration workers" and "undocumented immigrants" – from enforcement of federal immigration laws.

This act clearly violates the supremacy clause of our Constitution.  California is legislating the conditions under which federal immigration laws can be enforced in the state, yet immigration policy is solely within the jurisdiction of the federal government.  This act is similar to a state passing a law specifying how the IRS can examine taxpayers, or how OSHA agents may inspect workplaces, or how the FBI may question resident of a state.

In 2010, Arizona passed a law requiring state and local police to investigate the immigration status of anyone they reasonably suspected of being an illegal alien.  The Obama DOJ  promptlysued Arizona.  Attorney General Holder stated: "Seeking to address the issue through a patchwork of state laws will only create more problems than it solves[.]"

In Arizona, et al. v. United States (2012), the Supreme Court allowed the police to check on immigration status but struck down most of the law because of where it conflicts with federal law.  It struck down the sections that added criminal penalties where there were no federal criminal penalties.   It re-affirmed these basic principles:

  1. The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.
  2. Unlawful entry and unlawful reentry into the country are federal offenses.  Once here, aliens are required to register with the federal government and to carry proof of status on their persons.  Failure to do so is a federal misdemeanor.
  3. ICE officers are responsible "for the identification, apprehension, and removal" of illegal aliens from the United States.
  4. The federal government has occupied the field of alien registration.  This means federal law preempts state law.

Arizona enacted stricter laws than the federal laws because of the effects in Arizona of illegal immigration and the desire to protect Arizona residents.  Arizona's law was consistent with the federal immigration laws in preventing illegal immigration and locating and deporting those who violate federal immigration laws.  Arizona's laws should have been upheld in their entirety, because they did not weaken federal immigration laws, but added state procedures to enforce federal immigration laws.

But California is weakening federal law because it gives illegal immigrant workers greater protection than under federal law for the apprehension and removal of illegals.  The California law is not consistent with the purpose and premise of the federal immigration laws because California law imposes restrictions on how federal officials can enforce federal immigration laws in California.

For example, the California attorney general, Xavier Becerra, announced that California will prosecute and fine employers who cooperate with federal ICE officials and do not follow the California restrictions effective January 1, 2018:

It's important, given these rumors that are out there, to let people know – more specifically today, employers – that if they voluntarily start giving up information about their employees or access to their employees in ways that contradict our new California laws, they subject themselves to actions by my office.  We will prosecute those who violate the law.

Seems as if Becerra wants a confrontation with President Trump and the federal government.  He must have ambitions to run for governor or senator.

The California law is clearly unconstitutional.  The Sessions DOJ should move quickly to end this for the protection of neglected California legal residents.  The DOJ should file criminal charges, starting with Becerra, against any state agent who interferes with or threatens federal officials who are following federal immigration laws.