Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
This comes as Trump’s Justice Department has just issued a new threat to prosecute state and local officials who stand in the way of his immigration agenda. But that, too, looks like it clearly lacks a legal basis. The quality of all these arguments from Trump suggests he will encounter a lot of resistance from the states that may have a fair amount of success. Today, we’re talking to California’s Attorney General Rob Bonta about what this resistance will look like going forward. AG, thanks so much for talking to us.
Sargent: First, let’s turn to the big news just in: A federal judge has temporarily blocked Trump’s executive order attempting to revoke birthright citizenship, declaring it “blatantly unconstitutional.” Your reaction to that, AG? And does it have broader implications for the coming battle between Trump and California over his larger agenda?
We believed it was blatantly unconstitutional. A judge today affirmed that position using that exact language that the action of Mr. Trump was “blatantly unconstitutional,” and saying he hadn’t seen a case like this in four decades serving on the bench—a Reagan appointee, by the way, that was more clear in favor of our position that the action in the executive order was unconstitutional—and said it boggled his mind that this would even be brought forward. So, a good first day. This is a multi-step process, but the court’s doing exactly what they’re there for: to hold all people, including the president and his own actions, accountable to the law and accountable to the U.S. Constitution.
That’s what we promised we would do as attorneys general. That’s what I promised I would do: go to court whenever Mr. Trump violates the law. And my hope is that as president of the United States of America—it’s not a lot to ask to be law-abiding—that Mr. Trump follow the law. And if he does, I’ll have absolutely nothing to do. But if he doesn’t, as he did on day one with his executive order, we will be busy in court bringing him back in compliance with the law and stopping him from any unlawful or unconstitutional conduct.
Sargent: Well, this week Trump’s Justice Department threatened to investigate and even prosecute state and local officials who obstruct or resist federal immigration enforcement efforts. They’re also threatening state and local officials who merely fail to comply with federal commands and requests. Your response to that?
They are certainly entitled to do their job if they’re doing it in a lawful way, and we completely acknowledge that and agree with that part of the law, but they may not conscript or force states or local jurisdictions to do their job for them. This statement violates that principle so consistent with the unconstitutional action on day one in issuing an executive order that sought to revoke birthright citizenship. This statement by a political appointee of the Trump administration also has some fatally deficient aspects to it that are unconstitutional.
Sargent: Correct. With some exceptions, but generally correct. Under S.B. 54, passed a number of years ago and upheld in court as a fully constitutional law that is enforceable, that is right. And it’s a very unremarkable proposition that the federal government has jurisdiction over immigration generally, and that it’s their job to conduct immigration enforcement activities as they see fit in lawful ways. States and local jurisdictions can use their resources in the way they see most fit, including focusing on actual violations of crime and not participating in civil immigration enforcement, especially when there’s the United States of America who can do that, the federal immigration enforcement who can do that.
Sargent: I want to try to illustrate for listeners what this all means. Imagine if Trump’s DHS, Department of Homeland Security, were to ask California officials or local law enforcement officials to start, say, handing over undocumented immigrants who are waiting in local Home Depot parking lots, standing around waiting to get picked up to work on a construction site, then law enforcement in California would say—they would have to say—we can’t do that, right? Do I have this right? What does this all look like in practice?
The federal government is more than welcome to come in and do all the things you just said on their own if it’s done in lawful ways. They can go and enforce the immigration laws of the United States of America in California in appropriate ways, but they cannot force law enforcement in California to do that for them. That’s their job, and they can’t make us do their job for them. We want to focus on crime and we want our witnesses and victims to come forward to report crime so we can keep Californians safe.
Bonta: Yes, there’s no doubt about it. If someone is a victim of a crime and they want to report that to law enforcement but they think that that local law enforcement agency will retaliate against them or seek to enforce immigration laws against them, then they’re far less likely to come forward at all. And there will be a crime that goes unreported and a offender, a perpetrator who is not held accountable. That’s not good for public safety.
Sargent: I was talking to some lawyers about this Department of Justice memo, and they see a wrinkle in it. And it goes like this: The memo suggests that the game plan is to make requests of states like California for assistance with law enforcement. If the states say no, they’re suggesting that potentially they could then prosecute state and or local officials for harboring people who are removable. Are you aware of this as a real potential game plan on the part of the Trump administration? And how will you respond to that, handle it?
In fact, the Tenth Amendment prevents the federal government from forcing states and locals to do their job for them. And a decision to not take action, to focus on crime in the state of California instead of similar immigration enforcement does not amount to harboring an alien. It just doesn’t fit. It falls on its face with just a tiny bit of scrutiny. So if that’s their plan, so be it, but there’s no legal basis for it.
Bonta: Yeah. On your point about preparedness and readiness, that is our North Star. That is what we’ve been doing for weeks, for months on all issues related to a Trump administration stopping the progress in California. And we want our progress to prevail. We want to stay on the same path of progress that we’re on. We’re not seeking to pick a fight with the Trump administration, but if he fights with us, if he gets in the way of our progress, we’ll, of course, defend ourselves and fight back.
If they do prosecute a local public official or employee or law enforcement agency, department, or personnel for acting completely within their constitutional rights under the Tenth Amendment to focus on fighting crime instead of participating in the federal government’s job of immigration enforcement, we will absolutely take action. That would be a malicious prosecution in my humble opinion. There was no basis for it. It’s contrary to the constitution, and it’s not just my opinion. Courts have already said this.
Sargent: You mentioned that this would be a malicious prosecution on the part of Trump’s Department of Justice, which I think is undeniably clear. What recourse would you have as a state to do something affirmative in response to that? Is there a potential countersuit to be lodged in situations like this? What are you referring to when you say you’re going to fight such malicious prosecutions? It’s not merely defend these public officials; there’s more you can do, right?
Sargent: Can you talk a little more about that? You say you’d seek court orders to cease and desist these types of prosecutions on the part of the Trump administration, as well as recovering damages. What does that look like?
If they harmed California or a local jurisdiction financially by, for example, taking people away from their job duties, there could be some damages there. But the focus would be on preventing the ongoing conduct that’s unlawful from happening again. And that’s how a court can make the biggest difference.
Bonta: Our standard for when we engage in litigation against a Trump administration is if Mr. Trump is violating the law, if he’s acting unconstitutionally or otherwise violating federal law or other applicable laws. My office engaged with him when he broke the law many times in the Trump administration 1.0. We sued him over 120 times. We won the vast majority of the time. Two thirds of the time, a court said that Trump was acting unlawfully, breaking the law of the United States of America or a U.S. constitutional provision or something else.
Those are all examples of what we’ve done in the past. We can do any of those things and more in this cycle. If he attacks DACA, if he expands the public charge rule, if he tries to build the wall again, if he tries to attack sanctuary jurisdictions, if he tries to use the military for civil immigration enforcement on American soil, the Posse Comitatus Act generally prohibits that. We’ll have to take a look and see what role the military is playing, but that’s a potential area where we could sue if he breaks the law there. Those are all examples of places and spaces where we might get involved with respect to holding the Trump administration accountable if they break the law in their immigration policy.
Bonta: I first want to point out that Mr. Trump’s rhetoric and sales pitch was that he would go after the serious and violent criminals who were undocumented. Asylum is a fully legal pathway for immigrants who are refugees to come to the U.S. It’s for people who are fleeing violence or persecution. It could be people that fought side by side with our military in another country and are now at risk in their home country and need a place of refuge and safety, and that’s what he’s attacking. So I just want to point out the contradiction and the hypocrisy in what he says he will do and what he actually does.
Sargent: Well, obviously California has 11 million immigrants. It’s one third of the state’s population. A number of other states and localities are reportedly very worried about Trump’s threats. They fear a cutoff in federal funding if they don’t comply with his immigration agenda. Is there a role for California to lead here in showing the nation what it looks like to combat Trump on this and why states can be fearless in doing so?
One of those ways is for the president to provide emergency disaster relief funding for the L.A. fires immediately without conditions, as has always been the time-honored tradition of presidents. I’m going to work with the U.S. attorneys that Mr. Trump puts in the place throughout California to see if we can tackle fentanyl or organized retail crime or hate crimes or human trafficking or any crimes together and work together to keep our community safe. But it is nonnegotiable that the President of the United States needs to follow the law and act constitutionally. And we will take him to court if and when he doesn’t follow the law, like he didn’t with his executive order on day one trying to revoke birthright citizenship.
Sargent: Attorney General Rob Bonta, thank you so much for coming on with us. We really appreciate it.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.
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