California may be the first state to successfully punish the Federal government over immigration. In a recent vote, the California state Senate has passed an “anti-Arizona” immigration bill. The Act would allow local law enforcement officials to ignore ‘illegal alien’ detention requests from Federal authorities (unless the immigrant is charged with a felony). From the looks of the bill, it sounds like California has a bone to pick with the Federal Government over immigration (after all, this bill comes after the very public deportation of a woman after she had been arrested for selling ice-cream on the street).

It also seems to be a direct response to the surviving portions of Arizona’s immigration bill, which allows officers to check the immigration status of arrested individuals if the arresting officer has reasonable suspicion that the individual is in the country illegally.

But here’s where things take a turn for the “odd” and “ironic.” As one can remember, the Supreme Court overruled much of Arizona’s immigration bill due to its potential interference with Federal immigration law. The Court was especially concerned about the law’s ability to hamper the discretionary enforcement of Federal immigration laws (it essentially allowed Arizona police to arrest and charge individuals for violating Federal immigration laws). California’s “Anti-Arizona” bill, however, does more to hamper the enforcement of immigration laws than Arizona’s, and yet, it is likely to be found Constitutional.

How can this be? The answer is rooted in our Federal system. State officials cannot become “co-opted” by Federal agencies and used as instrumentalities of the Federal government. For that reason, state officials (like local sheriffs), are quite distinct from federal officers and are only involved in the accomplishment of Federal interests with the state’s permission. On the flip-side of the same coin, however, state officials cannot actively intrude upon Federal interests in a manner that would be disruptive to Federal objectives.

So why does this mean that California’s immigration bill is Constitutional while Arizona’s is not? It has everything to do with the nature of state action and the boundary between Federal and state power. If states don’t want to cooperate with the Federal government, they can refrain from using their officers to help further Federal objectives; they CANNOT, however, use those officers to actively disrupt Federal interests. So even though Arizona was interested in helping to reinforce an already-strained Federal immigration system, it’s active use of state officers impermissibly intruded upon Federal ground. This stands in stark relief to what California is doing. Even though California wants to frustrate the enforcement of Federal immigration laws (something it makes no bones about), its law is not unconstitutional because it doesn’t use state officers to actively do something that would frustrate Federal objectives; instead, it’s removing its permission to the Federal government to use its officers to arrest illegal immigrants that have only been charged with misdemeanors.

If the states want to thumb their nose at the Federal government over immigration policy, they should take note of what California is doing. A targeted removal of state permission to use state officers would not only be Constitutional, it might also provide the leverage states are looking for to change the Fed’s take on immigration.

Again, thanks to the attorney that is letting me use this blog. Your relinquishment of this site has truly been an inspiration.