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By Will Racke
Under Gov. Jerry Brown, California has emerged as the state most determined to oppose the Trump administration’s immigration and border security policies.
A bill under consideration in the statehouse would make California the first “sanctuary state” in the nation, preventing state, county and municipal officials from cooperating with federal immigration agents trying to carry out detention and removal operations.
Earlier in March, two separate laws were proposed–one by San Francisco city supervisors and another by a Democratic state assemblyman–that would cut ties with any company that contracts to build the border wall ordered by President Donald Trump. (RELATED: California Lawmakers Look To Punish Companies That Work On Trump’s Border Wall)
To drive the point home, Brown told “Meet The Press” host Chuck Todd on Sunday that California would “fight very hard” to challenge the Trump administration on its efforts to crack down on illegal immigration. When it comes to a legal fight against building a wall along the U.S.-Mexico border, however, Brown admitted his state has limited options.
“We’re not going to bring stupid lawsuits or be running to the courthouse every day,” Brown said, suggesting a more measured approach than the one taken by some of California’s other leading Democratic politicians. Brown is constrained by the reality that California, like every other state that borders Mexico, takes a backseat to the federal government in setting border and immigration policy.
Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, says the question of federal supremacy in border enforcement is settled law.
“There are many, many cases where the Supreme Court has said the apex of the federal government’s power is at the border,” he told The Daily Caller News Foundation. States can go to court to challenge the construction of the wall, but “the lawsuits would be frivolous” and likely dismissed, von Spakovsky said.
Some advocacy groups are girding for a fight with the administration when it invokes eminent domain to take control of land along the border, especially in Texas, where large stretches along the Rio Grande are privately held. Legal nonprofit the, Texas Civil Right Project, has said it is drafting eminent domain defenses that can be used in multiple cases.
“This is not necessarily some barren wasteland,” Brooke Bischoff, an attorney with the Texas Civil Rights Project, told Quartz. “There are large communities; there are ancestral homes here.”
Von Spakovsky says in the case of the border wall, which is clearly a public use project, property owners won’t have much recourse other than to contest the compensation offered by the government for their land.
“This is the entire purpose of the eminent domain clause in the Fifth Amendment,” he said. “It’s the equivalent of the Interstate Highway System, but the border wall is more important because it has a national security function the Interstate Highway System doesn’t have.”