Supporters of President Donald Trump in Orange County California could not deliver their famous Republican county for Donald Trump in the 2016 election. Part of the reason was that the county seat, the city of Santa Ana, was and is the second largest Mexican-American city in the country after San Antonio, Texas. Trump barely scored 20 percent with Hispanic voters around the country — and probably less in California.
Now, 17 months after Democratic nominee Hillary Clinton swamped Trump in California by 4 million votes and Orange County by 102,000, Orange County’s allegedly conservative political leaders are rebelling against the governor and legislature that have passed laws making the state a “sanctuary” state; that is, affording some illegal immigrants protection from federal law enforcement.
President Trump is cheering the county sheriff and county board by tweets like an energetic girl cheerleader who starts her day with two expressos.
Orange County is rebelling against the state of California that passed into law prohibitions of state employees and private businesses from actively helping federal authorities violate federal court orders on immigration sweeps and detention of prisoners until the federal government gets around to securing judge-signed arrest warrants.
Some observers wonder how the Orange County Board of Supervisors can sue the state when, in fact, California counties are mere subdivisions of the state. Specifically, how can Orange County sue when the very actions the Trump administration wants to implement in California have been ruled unconstitutional by a federal judge?
The Los Angeles Times: “A federal judge in Los Angeles has ruled that police departments violate the Constitution if they detain inmates at the request of immigration agents…U.S. District Judge Andre Birotte Jr. found that…the constitutional rights of inmates who were kept in custody at the behest of Immigration and Customs Enforcement officers (their rights were violated)…police cannot legally honor such detainer requests from ICE…‘officers have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individuals’ Fourth Amendment rights.”
So, what is Orange County up to? The county sheriff’s department has come up with a way that is side-stepping the state law (SB 54) that limits cooperation between the sheriff and the federal government. The department is publishing a list of all inmates with their release dates on the internet.
Orange County’s immediate neighbor to the south — the larger San Diego County — has a board of supervisors that may be considering a policy mirroring Orange County’s policy. The county’s five U.S. congressmen are split along party lines on joining the lawsuit. Republicans Darrell Issa and Duncan Hunter support Trump’s lawsuit. Democrats Scott Peters, Susan Davis and Juan Vargas are against it and support the state.
The question is not that the state is setting immigration law or policies. The question is: Can the federal government force state employees to do the work of federal immigration officers?
Can it?
To have any chance, it appears that the federal government must show that each “detainer” instrument federal officials send to a city or county to hold any inmate for the federal government must be legal to begin with. The detainer, or request to hold an inmate until the federal authorities can arrest the inmate, must be signed by a judge — not just a federal employee. To hold an inmate without a valid arrest warrant violates the inmate’s rights.
The Orange County sheriff has concocted a legal way of notifying the federal government when an inmate is being released with its plan to publish an alphabetical list of inmates and when they are being released for everyone to see. Federal agents can sit outside the county or city jail and arrest those they want to arrest with a legal arrest warrant.
The city or county can and will ignore the federal government’s detainers if the detainers aren’t legal. New York City, for example, ignored 1,526 requested detainers from immigration officials in 2017, which was 80 times the number requested in 2016. In 2016, the city complied with only two detainer requests. The city will only honor detainers if an arrest warrant is signed by a judge and the inmate is suspected or charged with 170 specific crimes, immigration violations are not “crimes.”
California’s new laws that the Trump administration objects to are like the New York City practice. The one large difference is that private California employer scan be charged with a violation if they work with the federal government without the government presenting a subpoena or arrest warrant.
There is no way of knowing what legal resolution of the lawsuits will occur in the future.
We do know one thing, though. The entire case revolves around the Fourth Amendment to the U.S. Constitution, which is, which says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Raoul Contreras is the author of “The Armenian Lobby & U.S. Foreign Policy” and “The Mexican Border: Immigration, War and a Trillion Dollars in Trade.” he formerly wrote for the New American News Service of the New York Times.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.