The Feds and California: Immigration Today, Cannabis Tomorrow?

california immigration marijuana
The Feds and California are not getting along so well.

If you’ve been following the news lately you’ve probably noticed that that the Trump administration, along with the U.S. Department of Justice (DOJ), have not exactly been getting along with the state of California. Just last week the Department of Justice filed a lawsuit against the Golden State, claiming that three of its laws interfere with the federal government’s authority to regulate the country’s immigration system. The California laws in question are Senate Bill 54 (“SB 54), Assembly Bill 450 (“AB 450”), and Assembly Bill 103 (“AB 103”). This is not the proper venue for an in-depth breakdown of every provision in these laws, but a brief description of each will help frame this discussion:

  • SB 54: Also known as the “California Values Act” was signed by California Governor Jerry Brown on October 05, 2017. SB 54 places limitations on when California law enforcement authorities can cooperate with federal immigration officials.
  • AB 450: Signed by Gov. Brown on October 05, 2017, AB 450 prohibits employers from cooperating with immigration enforcement officers unless the employer has been served with a subpoena or judicial warrant.
  • AB 103: Approved by Gov. Brown on June 27, 2017, AB 103 is a public safety omnibus bill (meaning it is a law that covers a number of measures). The DOJ takes issue with the provisions regarding state inspection of immigration detention facilities and granting the California Attorney General the authority to review the conditions of confinement and the standards of due process at these facilities (Section 12532).

In its lawsuit, the DOJ asserts that all three laws violate the Supremacy Clause of the United States Constitution by “constituting an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement.” I’ll save you from having to attend a semester of Con Law 101 by giving you a succint explanation on the Supremacy Clause: the Supremacy Clause is the constitutional provision that federal law takes precedence over conflicting state laws (assuming, of course, that the law is constitutional) . California has not yet filed an answer to the DOJ’s lawsuit but any response will be sure to include a Tenth Amendment argument.

Tenth Amendment jurisprudence states that the federal government can enact laws but it can’t force (or “commandeer”) state officials to administer them. In Printz v. U.S., 521 US 898 (1997), Justice Scalia, writing the majority opinion in a close decision (the case was a 5-4 traditional conservative-liberal split) held that “Congress cannot compel the States to enact or enforce a federal regulatory program.” California can make the plausible argument (and likely winning one) that under the Printz ruling the federal government cannot force local law enforcement to assist in federal immigration enforcement. However, the Printz decision will likely only apply to SB 54. Whether AB 103 or AB 450 can survive federal judicial scrutiny is far from certain.

The concern for states that have legalized medical and adult-use cannabis activities, along with state-legal cannabis businesses, is that the DOJ’s Supremacy Clause argument can be made against a state’s lawfully regulated cannabis industry. Under the federal Controlled Substances Act marijuana is still a federally illegal Schedule I drug and that is the supreme law of the land. The conflict between federal law’s cannabis prohibition and the states in the U.S. that now regulate cannabis activities is not an issue that the U.S. Supreme Court has yet to rule on directly but it has been bubbling around the surface for some time now and that day will arrive soon enough — leave it to California to lead the way! Assuming it does, we explained in detail how a state might defend its cannabis programs here.

With respect to California state laws, we should also note that in February of 2017, California state Assemblyman Reginald Jones-Sawyer introduced AB 1578. Just like with SB 54, AB 1578 would prohibit state or local agencies from assisting the federal government in taking certain actions, except in this instance it’s cannabis activities instead of immigration enforcement. AB 1578 ended up stalled in the state legislature but ever since the rescission of the Cole Memo by U.S. Attorney General Jeff Sessions there’s been a push to reintroduce AB 1578.

Hopefully AB 1578 is revived, but if the federal DOJ is eager for a fight before that happens it doesn’t have to wait: the city of Berkeley has already fired the first shot. Last month, the Berkeley city council voted to prohibit city agencies from using resources in enforcing federal cannabis laws or providing information on cannabis activities. Because the underlying theme between SB 54 and the Berkeley resolution are the same–prohibiting local officials from assisting federal authorities in enforcing federal law–one would assume that the DOJ will let their immigration lawsuit make its way through the courts before going after Berkeley (or AB 1578, if it’s ever enacted). All of that said, the Trump administration continues to pursue a path that continuously defies logic, so why would it show restraint now?

The DOJ immigration lawsuit will likely find its way to the Supreme Court and although I highly doubt a majority of conservative justices would overturn Justice Scalia (a conservative icon to many) there’s no guarantee that the Supreme Court won’t find a way to somehow differentiate Printz from the DOJ lawsuit. This is definitely a case to follow and we’ll be sure to keep you updated on all developments.