Living in Orange County, California, one is constantly reminded of the paradoxical political climate. Here – the county Ronald Reagan described as the place “where all the good Republicans go to die,” the home to none other than Richard Nixon and the electoral district in which Hillary Clinton broke a seven decade-long conservative streak – conservative ideology stands tall. Here in California, the state legislature and executive branch are controlled exclusively by Democrats while the number of state-registered Independents recently overtook the number of state-registered Republicans.
The same partisan dichotomy is no less apparent on the issue of immigration. Late last year, California Gov. Jerry Brown signed into law Senate Bill 54, transforming California into the country’s most extensive “sanctuary state.” Orange County, host to nearly a tenth of California’s illegal immigrants, reacted by signing onto the lawsuit against the state of California proposed by President Donald Trump’s administration. By linking arms with the federal government, Orange County has fanned the flames of what has proved to be an acrimonious debate on immigration.
While California has cleverly skirted some technicalities with S.B. 54, conservatives are right that the law affronts federal legitimacy. Sacramento’s conciliatory approach to illegal immigration, however, is in the spotlight for all the wrong reasons. Legal defiance of the Trump administration’s immigration approach should be highlighted, instead, for what it reveals: troubling inadequacy on the part of the federal government in search of effective immigration policy.
Generally, immigration is a matter that should be left to the federal government. Not only is Congress constitutionally entrusted with the naturalization of immigrants, but immigration is a pivotal component of foreign affairs, a domain also entrusted to Congress. The reasoning is sound: A task as complex and nationally extensive as immigration would overburden the states.
That said, states do hold some discretion over areas of immigration law where the federal government has yet to produce comprehensive policy. It’s why Arizona’s 2010 immigration law had provisions that dealt with the registration of noncitizens – a matter that had already been addressed by federal regulations – struck down; yet the law saw its components that addressed cooperation between state and federal officials – a matter outside of contemporary federal policy – upheld. The reasoning behind this is also sound: Federal laws hold preeminence over state ones, but power must also be balanced between state and national government, as per the U.S. Constitution.
California’s S.B. 54 does just that with respect to illegal immigration, addressing realities on the ground that have been overlooked in Washington, D.C. As of 2012, California housed a quarter of the country’s undocumented immigrants, forcing the state to address them less as a logistical anomaly to be corrected and more as a near-permanent contingent deserving of comprehensive policy. The sheer number of undocumented immigrants in California, occupants who neither receive the intangible benefits of legal status nor pay respect to the legal path to citizenship (though many do, contrary to popular belief, pay taxes), is an unfortunate reality for which the blame partly rests on Congress.
Congress, in failing to pass the Comprehensive Immigration Reform Act of 2007, missed an opportunity to curtail the problem of illegal immigration on two fronts. The act would’ve cleared a path to citizenship for millions of undocumented immigrants already living in the U.S., eliminating the choice between mass deportation and continued subversion of the law, while also stymieing the flow of future illegal immigration via tightened border security.
Alas, Washington floundered, and California was left to remedy its now-prolonged dilemma by facing reality. Undocumented immigrants began to be integrated into normal policy concerns, reflecting a national reluctance to truly take action. S.B. 54’s protection of nonviolent undocumented immigrants from federal agents, on the grounds that local law enforcement is more effective when less of the populace is afraid to cooperate, is justified when Washington’s inaction is taken into account.
Calling back on recent legislative failures may help explain the current legal dilemma, but the only concern for many is that sanctuary protection invalidates the rule of law. No matter the convenience afforded to law enforcement due to sanctuary policies, nor the injustice imposed on undocumented immigrants by the severe backlog of American immigration procedures, the argument goes, welcoming undocumented immigrants as they are sends the message that U.S. immigration laws are pliable. While Trump’s misleading and race-baiting statements on immigration, along with a shift toward nativist policies and preferences for immigrants with specific traits and backgrounds, are inexcusable, these critics are right that circumventing Congress is not sustainable nor desirable.
However, upon closer inspection, calls for a return to the rule of law also reveal that the true problem lies in failure to act at a national level. California’s S.B. 54 stridently disregards federal law only in the sense that it actively prevents state and local law enforcement from sharing information with federal immigration officers, a provision directly at odds with federal immigration law, as outlined in 8 U.S. Code section 1373. Other components of the law, namely the requirement that state and local officials release nonviolent undocumented immigrants in the face of orders from federal immigration officials, frustrate federal objectives yet exercise the perfectly legal practice of noncooperation.
California’s pushback on federal policy, much like the aforementioned Arizona law, is only possible because much of the immigration issue has not been comprehensively addressed by Congress. Recent failures by Congress to come to consensus were met by President Barack Obama’s executive “stopgap” measure, Deferred Action for Childhood Arrivals, which has since been followed only by extensive indecision and refusal to move forward on the part of Trump.
This stagnation decisively illustrates the need for new national legislation and policy that faces up to the struggles burdening the states. It also shows how bickering over the supremacy of federal law or the ability of states to avoid compliance amounts to wasted time and energy. Rather, comprehensive immigration reform by Congress is the only real solution when it comes to resolving the concerns of states like California and places like Orange County.