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California is mad that the DOJ wants it to actually enforce the Constitution

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Gov. Jerry Brown, D-Calif., reiterated that the state is "in the business of public safety." (AP Photo/Rich Pedroncelli)

The Department of Justice filed suit against California on Wednesday, seeking to preemptively prevent the state from interfering with federal immigration authorities. Specifically, the DOJ is challenging three California laws recently passed — Assembly Bill 450, Senate Bill 54, and Assembly Bill 103. In a press release early Wednesday, the DOJ said these laws “intentionally obstruct and discriminate against the enforcement of federal immigration law.”

The DOJ is correct constitutionally. The states cannot interfere with federal immigration law or pick and choose when and how the state complies. Regardless of one’s particular political ideology regarding immigration reform, as a constitutional question, the federalist system of the U.S. under our Constitution designates the power to determine immigration and naturalization law and policy to the federal government — specifically, to Congress to create the law under Article 1 and to the executive branch to enforce under Article 2.

Because immigration power is textually reserved to the federal government, the DOJ is further correct that the three California laws violate the Supremacy Clause of the Constitution. In effect, the laws make California a “sanctuary state” and do intentionally obstruct enforcement of federal immigration law. Constitutionally, this is not California’s judgment call to make. It’s squarely and exclusively within federal authority.

In his statement following the DOJ’s filing, Gov. Jerry Brown, D-Calif., reiterated that the state is “in the business of public safety.” This is a convenient talking point that sounds nice — it is not only factually incorrect, however, but also irrelevant to the constitutional analysis. Brown and California may promote public safety as a legitimate state interest only within their legitimate authority. For example, California could not constitutionally pass any law and justify it by rationalizing that the state is “in the business of public safety.” Every law must still be subject to constitutional scrutiny.

The separation of powers created by the Constitution requires that states follow federal law and policy where the federal government does have legitimate subject matter jurisdiction.

Thus, Brown’s and California’s constitutional option is to lobby Congress to provide meaningful immigration reform if they disagree with federal law, but cannot simply take action they are not constitutionally authorized to. There is no constitutional provision or exception to the Supremacy Clause that says, "States, go ahead and just enact state law if you disagree with Congress." Instead of following constitutional procedure, California is overstepping its legitimate state authority by unilaterally creating law that is in conflict with legitimate federal authority.

The reason for California’s overstepping is obvious, just as it is in any instance of unconstitutional action by any branch of government — the motivation is political.

Conservative constitutional lawyers are often arguing for states' rights and giving examples where states should step up or where the federal government is overstepping. These arguments are examples of rightful and legitimate state power where the federal government cannot encroach. But the Constitution requires that this argument works both ways. We should be just as vigilant to argue in instances such as this one against unconstitutional state action where the federal power is clear.

The DOJ should win a unanimous decision here. If California or any state doesn’t like complying with current federal immigration law, the solution is to ask Congress to change it, not to circumvent the Constitution. We have a separation of powers embedded in the Constitution for very good reasons — chief among them textually enumerated in the Preamble: promoting the general welfare. On matters the Constitution grants power to Congress, it is Congress that determines how to best discharge its obligation to the people of the U.S.

Every American should be concerned with the government at every level abiding by its limited constitutional powers, not just when it is politically convenient or advantageous. This is why there is a rule of law.

Jenna Ellis (@jennaellisorg) is a contributor to the Washington Examiner's Beltway Confidential blog. She is an attorney, a fellow at the Centennial Institute, a radio show host in Denver, Colo., and the author of The Legal Basis for a Moral Constitution.

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