“The tables are turned,” said Peter
J. Spiro, a law professor at Temple University.
The California case seems likely to reach the Supreme Court, where it
could give rise to a landmark reckoning on the role of states in setting
immigration policy. In the process, state and federal officials, along
with judges and justices, will face a test of their commitment to
consistency.
They will face stark choices. One is to apply legal principles
established in a case that mostly protected immigrants to one that seeks
to imperil them. Another is to revise those principles in light of the
very different circumstances.
Stephen Vladeck, a law professor at the University of Texas, said
history was repeating itself, but backward.
“The suit is modeled on the Obama administration’s successful suit
against Arizona,” he said. But he added that “some of the key
considerations are flipped.”
In the Arizona case, conservatives insisted that respect for state
sovereignty required letting states play a leading role in controlling
immigration within their borders. But Mr. Sessions, a longtime
conservative himself, disavowed that position in his speech on
Wednesday. “Immigration law is the province of the federal government,”
he said.
Justice Antonin Scalia, the conservative jurist who died in 2016, took a
different view of the Arizona case. In an impassioned partial dissent,
he wrote that “it is easy to lose sight of the states’ traditional role
in regulating immigration — and to overlook their sovereign prerogative
to do so.”
There is no doubt that the California lawsuit is at odds with some of
the Trump administration’s usual positions. “It’s a fascinating suit on
a number of levels,” Professor Vladeck said, “not the least of which is
the aggressive assertion of federal enforcement power directly against
states by those, like Attorney General Sessions, who have historically
been ardent defenders of states’ rights in the deeply analogous
contexts.”
Cristina Rodriguez, a law professor at Yale, said she detected
political parallels between the two suits.
“Both administrations claim that the state laws they challenge
impermissibly interfere with the executive branch’s ability to enforce
the immigration laws,” she said. “But both lawsuits are also clearly
designed to take on visible and politically powerful local officials
whose vision of immigration policy conflicts with the president’s and
his supporters’.”
In a news conference on Wednesday, Xavier Becerra, the California
attorney general, said he was ready for the fight. The state’s laws, he
said, were “fully constitutional and provide for the safety and welfare
of all our people.”
“California is in the business of public safety,” he said. “We are not
in the business of deportations.”