What about private employers? Can a state tell a business that it may not voluntarily cooperate with ICE? Federal law provides for voluntary cooperation, but California bans it. Federal law allows for inspection of employment records without notice to workers; California now requires notification. Federal law encourages use of the federal work-eligibility system; California law now restricts it. California doesn’t ban any conduct that federal law requires—but it takes the “voluntary” out of the rest. Some of this seems obstructive.
Finally, the state can certainly forbid its law-enforcement personnel from gathering immigration information from those they encounter. Based on the police power, that’s a good-faith law-enforcement strategy grounded in the idea that victims and witnesses should be able to interact with police without fearing deportation. The state can also bar its personnel from participating in ICE enforcement. A federal requirement that they participate would be classic “commandeering.” Refusing ICE “detainers” also seems pretty clearly within state power—these aren’t judicial warrants, they are phrased as requests, and they often seek detention of individuals who are otherwise constitutionally entitled to release.
Can the state refuse to turn over information about prisoners? A general policy of not turning over prisoner release dates might survive review—as long as it restricted only information that the state generally keeps confidential from the public. What, though, about a policy that gives ICE the release dates of only prisoners whom the state deems a threat? That seems awfully close to constructing an independent state immigration policy in this area, contradicting federal priorities.
The U.S. also claims that information about, let’s say, the home address or prison release of a detainee can’t be withheld under any circumstances. The reason? It argues that, under § 1373, these facts are “information regarding the citizenship or immigration status” of the individual. Indeed, almost anything about an alien that ICE wants to detain would, in this view, be covered by § 1373. California responds that, in fact, the language of the statute is much narrower—that “regarding the citizenship or immigration status” literally means whether the individual is a citizen and, if not, the individual’s immigration status. Location and duration of detention, physical location, home address, etc., is not “regarding,” the state argues.
Reading the statute as broadly as the U.S. does would seem, to me, to raise serious constitutional issues; some immigration authorities would argue the reverse—that a narrow reading would allow intentional state obstruction of federal policy.
Everyone agrees that the case will turn powerfully on the language of Arizona v. United States, the 2012 Supreme Court decision that invalidated most of Arizona’s aggressively anti-immigrant S.B. 1070. Arizona v. United States engaged the same emotions the new case does, but in reverse: A state government was seeking to regulate and even punish undocumented immigrants in ways that the federal government regarded as counter-productive.