Resistance State: California in the Age of Trump
Between Sacramento and Washington D.C. sits the rest of the country, and a chasm. On immigration and taxes, guns and healthcare, cannabis and climate change, California is the federal government’s equal and opposite reaction. One year into President Trump’s first term, the push and pull continues—playing out under the Capitol dome, in the courts and on Twitter.
Ready for another year? Follow along here.
The state of California filed a petition yesterday seeking to pause new Trump administration rules that allow employers to opt out of providing birth control coverage through employee insurance.
State Attorney General Xavier Becerra is asking for a nationwide injunction on the rule. In October, Becerra sued the administration over the rule, claiming it is discriminatory and violates the First Amendment because employers can use religious reasons to deny benefits.
“A woman’s birth control and health decisions should be made by a woman in consultation with her doctor—not by her employer and not by politicians,” Becerra said yesterday in a statement.
Last week, attorneys general in Virginia, New York, Maryland and Delaware joined Becerra’s lawsuit.
Under the Affordable Care Act, employer-provided health insurance is required to cover birth control.
While the Trump administration caused a stir last week when it reversed Obama-era policies encouraging universities to consider racial diversity in admissions, reaction in California was muted. That’s because California’s public universities have been banned from using race in admissions decisions since voters passed Proposition 209 in 1996.
The percentage of African-American, Latino and Native American freshmen enrolling at the University of California dropped sharply after the proposition went into effect, especially at UC’s most selective campuses, Berkeley and UCLA.
Just as striking was the impact on applications—fewer students in those groups were bothering to even apply, a university report found.
“I offer California as a cautionary tale to the rest of the nation,” then-UC President Richard Atkinson wrote in a 2003 Washington Post op-ed. “Our experience to date shows that if race cannot be factored into admissions decisions at all, the ethnic diversity of an elite public institution such as the University of California may fall well behind that of the state it serves.”
Latino enrollment has since rebounded at UC Berkeley and UCLA, due in part to demographic changes in the state. (More than half of California’s public high school graduates are Latino.) But it’s still not proportional to that group’s share of the state population.
Meanwhile, black student enrollment at those campuses never recovered. More than 6 percent of incoming UC Berkeley freshmen were African-American in 1995. In 2017, less than 3 percent were.
Four years ago, the Legislature considered asking voters to overturn just part of Prop. 209, but abandoned the idea after several Asian-American groups joined Republicans in opposing it, and waged vigorous protests against it. They argued that in California, re-instating affirmative action provisions in state university admissions would disadvantage Asian-Americans, who make up a plurality of the student body at some UC campuses.
A federal judge today ruled against the Trump administration’s attempt to immediately halt California’s so-called sanctuary laws—with one exception affecting employers.
Judge John Mendez, in U.S. District Court in Sacramento, denied a request by the federal Department of Justice for a preliminary injunction against California laws that limit cooperation with immigration enforcement officials.
The centerpiece of the three laws stands. It doesn’t literally make California a “sanctuary” for immigrants, but does place limits on the level of work state and local government officials can do to expedite ICE enforcement. A second law places limits on expansion of detention facilities in California, and requires inspection of those facilities by the state.
The judge did, however, grant the federal government’s request to block full enforcement by California of the third law, which said the state can fine employers for giving access to immigration agents without notifying employees first. Under the ruling, employers can still warn employees of impending ICE compliance checks, but will not face state fines if they allow federal agents to enter workplaces without a warrant. State Attorney General Xavier Becerra had announced in January that his office would go after employers who share information about workers in contradiction of the new law and they could face prosecution, including fines of up to $10,000. This ruling puts a damper on that effort.
Judge Mendez’s ruling seemed sympathetic to business owners caught between federal and state authorities. Owners in immigrant-heavy industries, such as hospitality and agriculture, say they’ve been caught between the federal escalation of anti-immigration efforts and the sanctuary laws; they haven’t known which to follow.
The Trump administration had sued California in March over all three laws that took effect Jan. 1. They’re intended to protect undocumented immigrants from being set on a path to deportation after interactions with local police, unless they have committed a serious or violent crime. The U.S. Department of Justice says the statutes are unconstitutional.
Becerra contends the laws do not conflict with the U.S. Constitution but, rather, act in concert with it. Not everyone in California agrees.
Dozens of local governments say the feds are right and have rebelled by passing resolutions against the sanctuary policy, signing onto the federal lawsuit or suing the state directly. The city council in the small Southern California city of Los Alamitos voted not to comply.
In today’s ruling for California, Judge Mendez said the Trump administration failed to confront California’s primary concern: that total state cooperation with federal immigration enforcement would make Californians not more safe, but less. “The historic police powers of the State include the suppression of violent crime and preservation of community safety,” the judge wrote, going on to add that the “ebb of tensions between communities and the police underscores the delicate nature of this relationship. Even perceived collaboration with immigration enforcement could upset the balance California aims to achieve.”
The overall ruling was a big victory for California, according to University of South California law professor Jean Reisz, who said even the small exception the judge granted to the feds was a sign that the California laws likely will survive the federal challenge.
Other recent rulings that went the federal government’s way, such as U.S. Supreme Court approval of the Trump administration’s travel ban, “were more about states interfering and imposing themselves in a federal arena,” Reisz said. Likewise, California’s bid to impose fines on business owners who want to honor federal agents’ requests to enter workplaces without a warrant was construed by Judge Mendez as state interference. But Reisz noted that’s not the case with California’s centerpiece sanctuary law—the one that has sparked so much controversy.
When state officials decline to provide a release date or a home address to immigration officials, she said, that isn’t “imposing” on federal law: “The distinction is: California is stepping aside, it’s not getting in ICE’s way. I mean, stepping aside is not helping—but is that interfering?”
Mendez cautioned that the debate is not over with this ruling.
“There is no place for politics in our judicial system, and this one opinion will neither define nor solve the complicated immigration issues currently facing our Nation,” he wrote. He added that he had reached his decision without concern for political consequences, a luxury the other two branches of government lack. “But if there is going to be a long-term solution to the problems our country faces with respect to immigration policy, it can only come from our legislative and executive branches. It cannot and will not come from piecemeal opinions issued by the judicial branch.”
Yes, California is suing the Trump administration again—co-leading a coalition of 17 state attorneys general who are contesting the “zero-tolerance” practice of separating young children from their undocumented parents at the border.
But wasn’t it just one week ago that Trump signed an executive order to reverse that practice? Why sue now?
Among the reasons: The executive order did not require that roughly 2,300 children be returned to their parents, and it did not directly state the practice will end.
“President Trump’s Executive Order says nothing about reuniting families, has no impact on the thousands of families who have already been traumatized, and is so vague and equivocal that it is unclear when or if any changes will actually be made,” said the joint statement released today by California Attorney General Xavier Becerra and leaders from the other states and the District of Columbia.
And in a separate case, a federal judge in San Diego later in the day issued a preliminary junction ordering the Trump administration to reunite any of the affected families within at least 30 days. In that case, brought by the American Civil Liberties Union, the judge rebuked the administration’s policy. He noted that “the facts set forth before the court portray reactive governance — responses to address a chaotic circumstance of the government’s own making. They belie measured and ordered governance, which is central to the concept of due process enshrined in our Constitution.”
Niels Frenzen, a USC professor specializing in immigration law, said the main issue with the executive order the president signed June 10 is that it’s not a definitive order.
“It doesn’t actually prohibit separation,” Frenzen said. “It has a number of exceptions, so you could still have families separated. And of course, the children who have already been separated from their parents, that’s a big problem.”
Federal officials have promised that any parents who agree to be deported will get their children back.
The U.S. Justice Department argued in court that its reunification procedures should be given time to work, and that they were necessary to enforce immigration law and protect children from endangerment by smugglers or by parents risking their safety by bringing them into the country illegally. The U.S. Department of Homeland Security said it had a process “to ensure that family members know the location of their children and have regular communication after separation to ensure that those adults who are subject to removal are reunited with their children for the purposes of removal.”
But Alex Azar, head of the federal Health and Human Services agency in charge of the children, said parents who insisted on filing a claim for asylum would remain in detention—and since there’s a 20-day limit for children’s detention, they couldn’t stay with their parents.
That didn’t sit well with California Democratic Sen. Dianne Feinstein: “The administration is holding children hostage to push parents to drop their asylum claims,” she said in a tweet.
There’s not much California can directly do about it, Frenzen said, outside of pursuing legal action.
One California law passed last year requires state inspections of all non-citizen detention centers—but that law could not include federal facilities. Likely as a result, federal officials chose to detain undocumented immigrants in California in the medium-security federal penitentiary in Victorville to detain immigrants in California, Frenzen said. That law also restricts expansion of city and county detention centers, but has no jurisdiction over private, for-profit facilities, so he doesn’t expect federal officials to reach the limits of detention capacity in the long term.
Frenzen said it’s against international law to deter asylum seekers, and it’s also a violation of U.S. immigration law, “because people do have a right to present themselves and seek asylum at a border crossing.”
Members of the Trump administration have defended their approach. The president himself said today that he has inherited the worst immigration system in the world. And as critics have ratcheted up their condemnation, his attorney general, Jeff Sessions, fired back.
Addressing the conservative Criminal Justice Legal Foundation today in downtown Los Angeles, Sessions had plenty to say about the protesters gathered outside the hotel, and about California lawmakers.
“The rhetoric we hear from the other side on this issue—as on so many others—has become radicalized,” he said. “We hear views on television today that are on the lunatic fringe, frankly.”
California’s Democratic Assembly Speaker Anthony Rendon tweeted that he wouldn’t keep donations from a company that runs for-profit detention centers in California: “Upon learning the role that Core Civic is playing in the detention of children separated from their parents by ICE, I directed my campaign to donate any donations I received from Core Civic to the Anti-Recidivism Coalition.”
Recipients of the company’s donation include the Democratic Party, candidate for governor Gavin Newsom and many other politicians.
Learn about all of California lawsuits against the Trump administration with our tracking tool.