Item 21 - Assembly Bill 937 (the “VISION Act”)

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AB 937 Page 14 This bill, unlike the Arizona law at issue in Arizona v. United States, clearly seeks to leave federal immigration enforcement to federal officials. Far from attempting to usurp federal duties related to immigration, the bill seeks to reinforce the federal framework that provides states with the power to determine whether or not to use their resources to assist in federal immigration efforts, including whether to have public employees function as immig ration officers and/or assist immigration officers. Federal law authorizes the Secretary of Homeland Security to enter into agreements that delegate immigration powers to local police. (8 U.S.C. Section 1357 (g).) But nothing requires states to enter into such agreements with the federal government. Of particular relevance to this bill, the 9th Circuit held in U.S. v. California, supra, that the 10th Amendment to the U.S. Constitution protects California’s right to control its own state and local resources, including state and local law enforcement resources. Specifically, the 9th Circuit observed that the federal government cannot force California to help its immigration enforcement efforts: SB 54 may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anti commandeering rule, to refrain from assisting with federal efforts…. In this context, the federal government...could not require California's cooperation without runnin g afoul of the Tenth Amendment. (U.S. v. California, supra, 921 F.3d at 890-91.) Because states need not participate in federal immigration enforcement, and bec ause of the explicit non-preemptive text and structure of Section 1357 (g), above, this bill merely expresses the state’s authority to determine that its public resources should be used for purposes other than assisting with immigration enforcement. By merely exercising this priority, the bill clearly does not usurp federal authority by “regulating conduct in a field that Congress . . . has determined must be regulated by its exclusive governance” in a manner that would make it vulnerable to a field preemption challenge. Conflict Preemption: As described above, the bill has two main prohibitions (one of which has two subparts). One, which happens to be the latter, reads as follows : A state or local agency or court shall not use immigration status as a factor to deny or to recommend denial of probation or participation in any diversion, rehabilitation, mental health program, or placement in a credit-earning program or class, or to determine custodial classification level, to deny mandatory supervision, o r to lengthen the portion of supervision served in custody. All of the programs and purposes described by this language -- probation . . . diversion, rehabilitation, mental health program, or placement in a credit -earning program or class – are state and local programs and decisions. Decisions regarding such programs and placements, like decisions “to determine custodial classification level, to deny mandatory supervision, or to lengthen the portion of supervision” are purely state and local matters. Califo rnia is allowed to prioritize the use of its resources on activities which serve the greatest need and further the most pressing interests of the state and its residents. (See Gregory v. Ashcroft , supra, 501 U.S. at 457- 58.) Therefore, this provision does not raise any conflict preemption concerns. The bill’s other main prohibition, however, could be more problematic, depending on how it is interpreted. It provides as follows :