US passport and legal gavel on a copy of the US Constitution signifying immigration litigationIntroduction:

Recently, the federal government announced its intent to sue the state of California over several immigration-related bills that the United States Attorney General has claimed are unconstitutional. See, e.g., Abby Hamblin, “Jeff Sessions’ immigration lawsuit targets California: your questions answered,” San Diego Union-Tribune, Mar. 7 2018. At issue are three California laws, and California’s governor Jerry Brown has denied any claims of unconstitutionality and defended the state’s policies. See, e.g., id. In the wake of immigration debates that are taking place nationwide, this lawsuit may have national implications and should be of great interest to members of the legal community. This article examines the issues involved in the litigation at hand and the way members of the legal profession may be impacted by and respond to it.

Discussion:

Generally speaking, the matter of whether immigration should be promoted has often been a battle of the experts. Some have rooted their arguments in the economic impacts of immigration and have offered countless studies to reinforce such opinions. Others have taken the position that there is a relationship between immigration and criminal activity, though the debate surrounding the truth of that claim is intense and the issue is highly contentious. Finally, as in the case involving California, legal experts on both sides of the equation have invoked constitutional law arguments. In the case of those supporting the federal government’s interest, some have claimed that state governments who try to protect immigrants, particularly undocumented ones, are in violation of the Supremacy Clause of the U.S Constitution. See, e.g., id. In response, constitutional experts on the other side have expressed that the 10th Amendment to the Constitution provides that any issue not expressly delegated to the federal government (and therefore, immigration) is a matter for the states to decide. See, e.g., id.

The lawsuit against California takes issue with three state laws: (1). A.B. 450, which bars employers from “allowing immigration enforcement agents to enter a work place or review employee records without a subpoena or court order,” (2). S.B. 54, a bill that bans “state and local agencies, including school police and security staffs, from using funds or personnel to investigate, interrogate, detain, detect, or arrest people for immigration enforcement purposes,” and (3). A.B. 103, which precludes “city, county, and local law enforcement agencies from entering into a contract with the federal government or any federal agency to house or detain unauthorized immigrants in locked detention facilities for purposes of civil immigration custody.” Id.

Both the federal government and the state of California are relying heavily upon constitutional law claims, which will likely necessitate the need for constitutional law experts’ input to help persuade a court. In addition, California government officials have argued that they are within their constitutional rights in having passed and implementing the legislation at issue. Experts in the field can help assess competing claims and address whether or not the laws being challenged would meet the Supremacy Clause.

Because of certain historical matters and because of the nature of the laws being challenged, other issues will almost certainly be at play. For example, precedent may play a role in the outcome of the pending litigation. As Sacramento Mayor Darrell Steinberg explained, the federal government previously sued Arizona for “infringing upon the rights and the safety of people who were just trying to make their way.” Darell Steinberg, “California Disagrees With Justice Department’s Immigration Lawsuit,
NPR, Mar. 8, 2018, available at https://www.npr.org/2018/03/08/591830507/california-disagrees-with-justice-departments-immigration-lawsuit (last visited Apr. 4, 2018). According to Steinberg, the current federal stance turns the Arizona precedent “on its head,” and “[i]n this instance, of course the federal government’s doing just the opposite.” Id.

Conclusion:

Expert witnesses may play an important role in the outcome of the litigation in California and other lawsuits concerning immigration policies. Not only will those with expertise in immigration law, constitutional matters, economic issues, appropriate detention procedures, civil rights, and more be valuable to attorneys and adjudicators, but this case may set a national precedent. In addition, because the laws being challenged involve specific matters, such as employment practices, employment experts may also play a part in guiding lawyers and courts. Finally, it is important to note that whether immigrants are documented or not, their presence in this country is not, contrary to some traditional beliefs, a criminal act. See, e.g., Louis Jacobson, “Is being in the United States unlawfully a ‘crime’?”, PoliFact, Mar. 15, 2017, at http://www.politifact.com/florida/statements/2017/mar/15/florida-conference-catholic-bishops/being-united-states-unlawfully-crime/ (last visited Apr. 4, 2018). Because being an undocumented immigrant is not a criminal act, the law that governs immigration is not the same as the policies and procedures a criminal defendant would be subject to. This distinction is important and highlights why experts are so important to the equation—they can help juries understand what laws should prevail and which policies are in line with the Constitution and public policy.