Co-published by Capital & Main:
Republicans didn’t just win total control of the federal government last November. They also emerged holding a record number of governorships and retained their overwhelming dominance of state legislatures. There are now only five states in which Democrats have a “trifecta” — control of both legislative chambers as well as the governorship — compared to 24 for the Republicans. That’s two fewer such states than Democrats had held before the election, which was in turn the fewest they’d held since the Civil War, when there were only 35 states.
Fortunately for the Democrats, one of those trifecta states is the most populous and economically powerful in the country. Additionally, California has, by far, the largest number of undocumented immigrants in the U.S.: 2.4 million out of about 11 million total. Moreover, three-quarters of Californians oppose mass deportation measures of the kind that President Donald Trump has repeatedly called for, and nearly two-thirds believe immigrants who are already here should be able to apply for U.S. citizenship. California is now simultaneously the welcome home (relatively speaking) to more than a fifth of America’s unauthorized residents, and one of the last strongholds of a besieged Democratic Party.
A collision between the Trump administration and Democratic lawmakers in Sacramento is inevitable. California lawmakers are counting on it. Today the president is expected to sign an executive order authorizing construction of his vaunted border wall, and to withhold federal funds from so-called “sanctuary cities” like Los Angeles and San Francisco. Since November, in anticipation of actions such as these, state legislators in California have been rushing to pass a slate of new laws to put the state’s undocumented population as far out of reach of federal authorities as possible, and to give them at least a modicum of protection from summary deportation once they’re ensnared by Trump’s Immigration and Customs Enforcement (ICE) agents.
Here are the ways state lawmakers are preparing for the coming showdown.
Non-Cooperation With ICE
Shortly after Trump was elected, Los Angeles Police Department Chief Charlie Beck declared that his officers would continue to adhere to the department’s long-standing policy of not assisting federal agents in deporting immigrants. Beck referenced Special Order 40, a directive from 1979 that prohibits LAPD officers from questioning people about their immigration status.
The LAPD’s hands-off approach to immigration enforcement is part of why Los Angeles is considered a “sanctuary city.” But despite Special Order 40, the department in fact routinely collaborates with ICE, whose agents and the LAPD conduct joint operations together. The LAPD shares intelligence with ICE, and LAPD officers have rounded people up on raids ostensibly unrelated to immigration, then allowed ICE to take custody of those arrestees for the purpose of deportation. Outside of the LAPD’s jurisdiction, the Los Angeles Sheriff’s Department has allowed ICE agents to operate inside county jails.
Immigration attorneys and immigrant-rights advocates have criticized this kind of cooperation between local police forces and federal agents throughout the Obama administration. Now, with Trump pledging to deport two to three million immigrants — the equivalent of the total number of removals through eight years of record-setting deportations under Obama — California lawmakers are finally proposing to put an end to the practice.
A bill introduced last month by Senate President Pro Tem Kevin de León of Los Angeles would bar state, local and school police officers from pursuing or helping federal agents track down people for immigration violations. That includes sharing information with ICE that’s gathered in databases such as California’s “CalGang” system, which purports to track gang affiliations. The bill would also stop law enforcement from helping the feds put anyone on an identity-based registry, such as Trump has proposed for Muslims living in the United States. In effect, the bill would make California a sanctuary state.
Passing this bill would throw a pretty big monkey wrench into Trump’s deportation machine. Without active, concerted assistance from local law enforcement, it’s hard to imagine the federal government having the intelligence or the sheer manpower to track down millions of undocumented California immigrants. “Trump’s deportation plans really depend on cooperation or voluntary assistance from states and localities,” Jessica Karp Bansal, an attorney with the National Day Laborer Organizing Network, told me. “This bill just says no. We’re not using our local resources to assist in deportation.”
No Data Sharing
De León’s bill would also prevent state agencies from collecting information from people beyond what they need to perform their official duties, and from sharing that information for any reason other than fulfilling the services they’re tasked with.
In an era of Big Data, this might be one of the most significant requirements of the entire package of legislation. One immigration attorney told me that there are probably two to three million undocumented immigrants who the government can already track down easily through biometric data gathered from prior interactions with the state, whether through criminal convictions or simply going to the DMV.
It’s unclear how many and which state agencies have already shared their data with ICE, though we know that law enforcement agencies have done so as a matter of course. However extensive the practice has been, de León’s bill would work to put an end to it.
Due Process for Deportation Defendants
Under federal law, non-citizens have no legal right to government-provided lawyers in deportation proceedings — there is no public defender system in the immigration courts. Most defendants, unable to afford an attorney, are forced to represent themselves. A 2015 study of over 1.2 million deportation cases between 2007 and 2012 found that just 37 percent of defendants had counsel, and only 14 percent of defendants who were in detention did. Having a lawyer makes a difference – with legal representation, detained defendants were up to 10.5 times more likely to avoid deportation.
The Central American refugee crisis, which peaked in 2014, provided example after example of what “due process” can look like without the guarantee of legal representation. When I reported on the subject for Capital & Main two-and-a-half years ago, Lindsay Toczylowski, currently executive director of the Immigrant Defenders Law Center, told me: “I’ve seen infants going into court. I’ve seen a five-year-old girl questioned by a judge while she’s sitting in a chair big enough so her feet don’t even touch the floor.” Ahilan Arulanantham, deputy legal director with the American Civil Liberties Union of Southern California, and senior staff attorney at the ACLU Immigrants’ Rights Project, described the process as “a joke.”
Last month, State Senator Ben Hueso of San Diego introduced a bill that would require the state to guarantee legal representation to immigrants who are in detention and facing removal proceedings by contracting or subcontracting out to nonprofit law firms. The bill would also establish a legal defense fund that could take donations from private foundations to pay for the lawyers.
Pro-immigrant municipal and county officials are also creating legal defense funds at the local level. In San Francisco, where an estimated 44,000 undocumented immigrants live, Supervisor David Campos has proposed that the city and county put $5 million toward establishing such a fund (the measure has become bogged down in a dispute with the mayor over whether the funds should go largely to the city’s Public Defender’s office or exclusively to private nonprofit community legal-services groups). In Los Angeles, the county has voted to contribute to a $10 million legal fund for immigrants in removal proceedings; the city is expected to take a similar vote.
Immigration Law Training for Public Defenders
Another bill, introduced by East Bay Assemblymember Rob Bonta, sets up centers to train public defenders in immigration law. When undocumented immigrants are charged with crimes, their plea deals can often create unexpected problems related to their immigration status, even when they might result in a lighter criminal penalty. Public defenders who are versed only in criminal, and not immigration, law can unwittingly advise clients to agree to accept charges that end in deportation. Bonta’s bill aims to solve this problem.
The immense power of the federal executive can be dangerously abused, especially when a prickly chief with autocratic tendencies and single-party control of all three branches of government sits atop it. But rounding up, detaining and deporting millions of people is a hard enough task even with pliable and obedient state and local agencies to work with. In California’s case, these agencies are soon likely to become not just unhelpful, but legally obligated to recalcitrance. And these agencies happen to serve the largest concentration of undocumented immigrants in the country.
Open, unbridled confrontation with a hostile federal government is an unenviable scenario to be in. But so is having the core commitment of your entire presidential campaign depend, in large part, on the decisions of people who are committed to defy everything you stand for. The emerging showdown between Sacramento and Washington over the fate of millions of California residents will be forced into a standoff, a compromise or an epic political battle.