In the case of United States v. California, 2018 U.S. Dist. LEXIS 112055 (E.D. Cal. July 5, 2018), a motion by the United States of America (“United States” or “Plaintiff”) for a preliminary injunction was denied in part and granted in part by the California Eastern District Court. The United States had sought to enjoin enforcement of certain provisions of three laws enacted by the State of California (“Defendant” or “California”) through Assembly Bill 103 (“AB 103”), Assembly Bill 450 (“AB 450”) and Senate Bill 54 (“SB 54”).  The Court found that Plaintiff was not likely to succeed on the merits of its Supremacy Clause claims against AB 103, SB 54, and a notice requirement provision added by AB 450. The Court also found that Plaintiff was likely to succeed on its claim against the remaining provisions of AB 450, as those provisions apply to private employers.

The motion raised the issue of the balance between the United States’ enumerated powers over immigration on one side, and California’s reserved police power on the other. The motion also presented the question of whether state sovereignty includes the power to prevent state agents and private citizens from voluntarily complying with a federal program.


United States sought to enjoin California’s Gov. Code section 12532 (as added by AB 103); Gov. Code sections 7285.1 and 7285.2 and Lab. Code sections 90.2 and 1019.2 as applied to private employers only (as added by AB 450); and Gov. Code Sections 7284.6(a)(1)(C), 7284.6(a)(1)(D), and 7284.6(a)(4) (as added by SB 54). United States contended that federal law preempted these California provisions under the Supremacy Clause[1] of the United States Constitution because California lacked the authority to “intentionally interfere” in the area of immigration enforcement, and because the provisions were an obstacle to congressional objectives.

The Court explained that the Supremacy Clause proclaims that the United States “‘Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby’” and that the Tenth Amendment limits the United States to powers enumerated in the Constitution, reserving the remaining powers to the States.  The Court observed that although the United States clearly had broad power over immigration and alien status issues, the Supreme Court had never held that any state law dealing with aliens was therefore “per se pre-empted.”

The Court noted that Congress could preempt state law, even in areas traditionally regulated by the States, but there was a strong presumption against preemption in such situations.  If a state law was to be considered an obstacle to congressional objectives, and thereby subject to preemption by a federal statutory scheme, such objectives must be “unmistakably clear”[2] in the language of the federal statute.  A second requirement for this “obstacle preemption” to apply was that the conflict between the state law and the federal scheme must be such a direct and clear one that the two acts could not be reconciled.  Here, Plaintiff claimed that the Immigration and Nationality Act[3] (“INA”), the federal statutory scheme for the regulation of immigration and naturalization, preempted the challenged California provisions.

The Court added that the Supremacy Clause also gave rise to the doctrine of intergovernmental immunity, whereby a State could not regulate the United States directly or discriminate against the Federal Government or those with whom it dealt.  The requirement for a state law to be invalidated due to intergovernmental immunity was a showing that a state regulation burdened the Federal Government (or those dealing with the Federal Government) more so than it did others.

The Court noted that the Tenth Amendment precluded Congress from issuing direct orders to the States.  Its “anticommandeering” doctrine prevents Congress from directly compelling States to enact a regulation or enforce federal regulatory programs, conscript state officers for such purpose, or prevent a State from enacting laws.  The Court added that “[e]ven requiring state officers to perform discrete, ministerial tasks violates the doctrine.”


The Eastern District Court considered each challenged California provision to evaluate the likelihood that United States’ motion for injunction would succeed on the merits.

Assembly Bill 103

The Court observed that Gov. Code section 12532, as added by AB 103, directed the California Attorney General to review and report on county, local, and private locked detention facilities in which noncitizens were housed or detained for purposes of civil immigration proceedings in California.  The review was expected to include a review of the conditions of confinement, the standard of care and due process provided to the individuals housed or detained in the facilities, and the context of their apprehension and transfer to the facility.  Lastly, the Attorney General was required under Section 12532 to present a comprehensive report of his findings to the Legislature, the Governor, and the public.

Contrary to Plaintiff’s assertion that the review and reporting requirement of Section 12532 interfered with the federal authority in immigrant detention, the Court found no suggestion in the INA that Congress intended States to have no oversight for operation of detention facilities within their borders. The Court acknowledged the California Attorney General’s broad constitutional powers to enforce state laws and conduct investigations relating to subjects under his jurisdiction.  The Court noted that detention facility contracts actually addressed compliance with state and local law, suggesting that California retained some authority over the detention facilities.  The Court thus found AB 103 did not present any obstacle to the federal government’s immigration enforcement or detention scheme.  Nor did intergovernmental immunity attach here because there was no evidence of better treatment of detention facilities other than the federal contractors.  The Court concluded Plaintiff was not likely to succeed on the merits for this provision and denied the motion for preliminary injunction as to AB 103.

Assembly Bill 450

The Court next addressed AB 450’s various requirements on public and private employers with respect to immigration worksite enforcement actions. The Court explained that AB 450 prevented employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor or to access the employer’s employee records under Gov. Code sections 7285.1 and 7285.2.  It required employers to provide notice to their employees of any impending I-9 (or other employment record) inspection within 72 hours of receiving notice of that inspection under Lab.  Code section 90.2.  Finally, AB 450 prohibited employers from reverifying the employment eligibility of current employees when not required by federal law under Lab. Code section 1019.2.

The United States challenged AB 450 as applied to private employers only, arguing that these additions to state law were an obstacle to immigration enforcement objectives under the Immigration Reform and Control Act (“IRCA”) and the INA.  The IRCA is a comprehensive framework for preventing illegal aliens from employment.

The Court found that intergovernmental immunity applied to AB 450’s consent prohibitions because Sections 7285.1 and 7285.2 improperly targeted the operations of federal immigration enforcement in imposing fines on those employers who acquiesced by granting entry or employee records access in a federal investigation but not on those who did not.  The Court thus concluded that United States was likely to succeed on the merits for these two sections and granted the preliminary injunction applicable to them.

The Court found that AB 450’s employer-to-employee notice requirement did not lead to either obstacle preemption or intergovernmental immunity issues.  The relevant IRCA provisions were directed at employers, so there was no suggestion in federal law that Congress had intended to withhold inspection knowledge from employees.  Nor did intergovernmental immunity arise in this context.  Thus, the Plaintiff’s Supremacy Clause claim failed as to Section 90.2, and the preliminary injunction corresponding to this subsection of AB 450 was denied.

Regarding AB 450’s reverification requirement, the Court explained that under IRCA, an employer faced liability for continuing to employ an immigrant in the United States knowing that the immigrant is (or has become) unauthorized with respect to such employment.  Congressional intent was to tie liability to an employer’s knowledge, but California’s Lab. Code section 1019.2 frustrated that purpose by prohibiting reverification of employee eligibility.  The Court therefore concluded that Plaintiff’s Supremacy Clause claim was likely to succeed against Section 1019.2.

Senate Bill 54

SB 54 added several subsections to California’s Government Code that prohibited state law enforcement agencies from sharing information pertaining to immigration enforcement, including a person’s release date and home or work addresses, unless that information was publically available.  The United States identified 8 U.S.C. section 1373 as the source of the most direct conflict with these California subsections.  Section 1373(a) bars States from prohibiting, or in any way restricting, “any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”  United States argued that “information regarding the citizenship or immigration status” included release dates and home and work addresses, and so SB 54’s information sharing prohibitions violated the Supremacy Clause.  The Court determined that the plain meaning of Section 1373 included only immigration status information, not the release date or address information, and so found no direct conflict between SB 54 and Section 1373.

Plaintiff also contended that the structure of the INA required States to allow a basic level of information sharing, and that SB 54 undermined the system Congress designed.  The Court disagreed, explaining that California’s choice not to assist federal immigration enforcement was not an “obstacle” to that enforcement; California merely specified state law enforcement activity.  Therefore, preemption was not appropriate.  The Court added that there was no “clear and manifest” congressional purpose to supersede state police powers.  The Court further found that a congressional mandate prohibiting states from restricting their law enforcement agencies’ involvement in immigration enforcement activities would probably violate the Tenth Amendment.

The Court accordingly found that United States was not likely to succeed on the merits of its SB 54 claim, and denied its preliminary injunction motion as to SB 54.

In sum, the Court concluded that AB 103, SB 54, and the employee notice provision of AB 450 were permissible exercises of California’s sovereign power.  With respect to the other three challenged provisions of AB 450, the Court found that California had impermissibly infringed on the sovereignty of the United States.  Plaintiff’s motion for preliminary injunction was therefore denied in part and granted in part.

Motion to Dismiss Complaint by California

In related motion proceedings, the Eastern District Court of California reviewed defendant California’s motion to dismiss the complaint in its entirety with plaintiff United States, naturally, opposing.  Consistent with its ruling on the motion for a preliminary injunction, the Court granted California’s motion to dismiss the Supremacy Clause claims against AB 103, SB 54, and California Labor Code Section 90.2 (added by AB 450) without leave to amend the Complaint.  The Court denied California’s motion to dismiss the Supremacy Clause claim with respect to California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2 (added by AB 450).


The California provisions outlined above deal with fluid immigration issues and delicate sovereignty bounds.  If the case is appealed, more changes could be forthcoming in how agencies should understand and implement state directives in such matters.  Agencies should keep abreast of all such subsequent cases to protect themselves.  As an example of the gray area, the Court concluded that California could restrict law enforcement agency assistance in immigration enforcement, but could also enable cooperation in certain circumstances.  What those circumstances entail, as delineated by the courts, remains somewhat open and should be closely observed and applied.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

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[1] U.S. Const., Art. VI, cl.2.

[2] Gregory v. Aschcroft, 501 U.S. 452 (1991).

[3] 8 U.S.C. section 1101 et seq.