Supreme Court Declines to Hear Anti-Sanctuary Case Against California
By David Jaroslav | FAIR Take | June 2020
On June 15, after years of lower-court litigation and months of waiting, the Supreme Court of the United States passed up a clear opportunity to rule on the constitutionality of state sanctuary policies when it denied review in the case of U.S. v. California.
The case began early in the Trump Administration when then-Attorney General Jeff Sessions sued California for an injunction to block enforcement of three sanctuary laws, but primarily Senate Bill (SB) 54, the 2017 statute prohibiting most cooperation and information-sharing between state and local law enforcement and federal immigration authorities.
In July of 2018, federal judge John Mendez denied the injunction for SB 54 but struck down another state law, AB 450. AB 450 required private property owners to not comply with searches by federal immigration officers.
The U.S. Department of Justice (DOJ) appealed Judge Mendez's order to the notoriously liberal U.S. Court of Appeals for the 9th Circuit which unsurprisingly affirmed upholding the sanctuary law.
DOJ then appealed from the 9th Circuit to the Supreme Court. A case appealed to the Supreme Court does not automatically get considered. Rather, the Supreme Court has discretion to decide whether to hear a case, typically granting fewer than 100 such petitions each year.
DOJ and California exchanged multiple briefs before the Supreme Court arguing whether the Supreme Court should hear the case. The court first considered all the briefs at a conference in January and then “re-listed" the case 13 times until finally deciding this month not to grant review.
When the Supreme Court denies a petition for review, it typically does not issue an opinion explaining its reasoning. The court's two-sentence order denying the petition noted that Justices Thomas and Alito would have granted it and heard the case on the merits.
Open-borders advocates celebrated the decision. However, they inaccurately characterized the court’s action as deciding that sanctuary policies are constitutional. However, when the Supreme Court denies a petition, it does not review or decide the questions in the case on the merits. It merely lets the lower court’s decision stand without ruling on it.
Customarily, the Supreme Court waits for multiple circuits to disagree on an issue before intervening to resolve the conflict. There are cases challenging sanctuary policies outside the 9th Circuit, most notably in New Jersey, which is in the 3rd Circuit, but they haven’t been decided yet on the trial court level so are likely to take years before reaching the Supreme Court.
As Andrew Arthur of the Center for Immigration Studies (CIS) notes, the Supreme Court's action doesn’t mean the California litigation itself is over. What DOJ appealed was only Judge Mendez's initial denial of a temporary restraining order until the case could be heard on the merits. Judge Mendez hasn’t actually heard the case on the merits yet so the outcome celebrated by the open-borders advocates could be premature. While the Supreme Court’s action is disappointing to supporters of enforcing our immigration laws, it does not mean it had decided sanctuary policies are constitutional, merely that the fight over them will continue.