Last month, California lawmakers passed a bill that would have opened jobs in the state’s higher education institutions to students who are undocumented. Then, earlier this month, Gov. Gavin Newsom vetoed that bill, in part because he said the legal liabilities were too high.
But left the door open for reconsideration, saying that the courts could vouch for its legality.
In the campaign to open up those jobs, the issue is whether state agencies have to follow a 1986 federal law that compels federal and private employers to confirm employees’ authorization to work in the U.S.
Some legal advocates say there is no language in the law compelling state employers to follow that edict.
Newsom wrote in his Sept. 22 veto statement that he wants the legal theory tested:
“Given the gravity of the potential consequences of this bill, which include potential criminal and civil liability for state employees, it is critical that the courts address the legality of such a policy and the novel legal theory behind this legislation before proceeding. Seeking declaratory relief in court — an option available to the University of California — would provide such clarity.”
The veto of the proposed law may prove to be the final nail on the coffin of the movement. But advocates of the policy said Newsom is leaving an opening.
“I don't believe that the governor is shutting the door on it. He is saying that he wants a court to bless the legal interpretation underlying it before moving forward,” said Ahilan Arulanantham, a professor of immigration law at UCLA who is one of the bill’s most prominent advocates.
That idea puzzles other legal scholars, however. They say Newsom’s suggestion that the University of California go to the courts — to seek a judgment known as “declaratory relief” — would require a law or policy to be in place; and they say that’s not the case here.
What is declaratory relief?
Declaratory relief has been part of the federal legal system since the first half of the 20th century.
Some call it “preventive justice” because a party seeking declaratory relief wants a court to rule on the legality of a law or policy before it’s challenged.
“Declaratory relief is kind of a… rare thing to do,” said Dan Croxall, a professor at the University of the Pacific McGeorge School of Law.
He’s talking about a common shape civil cases take: one party alleges that a law or policy caused some kind of harm that’s already happened.
“Declaratory relief allows a party to go to a court if there's a threat of future litigation, and say, ‘we're not sure or not clear what our rights are here or what our obligations are here,’” Croxall said.
Is Newsom’s suggestion legally sound?
The U.S. Justice Department says declaratory relief is not available to resolve problems that are “hypothetical, academic, or theoretical.”
“What is perplexing to me is, I don't understand how, in the absence of either a state law or a firm university-wide policy, how you can get a declaratory relief or some sort of advice from a state court as to the legality of such a policy,” said Deep Gulasekaram, a professor of constitutional law and immigration law at the University of Colorado.
The University of California regents have so far declined to pass such a policy.
Asking the courts to rule on a controversy where there is no law or policy adopted yet amounts to seeking an advisory opinion from the courts. Croxall said federal and state courts do not do that.
“It would be really nice to be able to go to a federal judge and say, ‘Hey, can I do this?’ And they would basically be giving you legal advice,” Croxall said.
LAist asked Newsom's office to address skepticism that declaratory relief is an option. A spokesman replied: "The veto message speaks for itself."
In response to a request to clarify declaratory relief as it was described in the Governor’s veto message, a spokesperson for the Judicial Council of California, the policymaking body for the California courts, said the council is “prohibited from providing legal interpretation on such matters.”
The L.A. County Bar Association and the Orange County Bar Association did not reply to a similar request.
What happens next?
Newsom's veto has already received pushback.
Assemblymember David Alvarez, the author of the vetoed bill, has said he will re-introduce it in the next legislative session, while the activists who have been pushing for the change criticized the veto hours after it was issued.
“It felt to me like [Governor Newsom] was passing the buck,” said Arulanantham, the UCLA professor. “Because you don't actually need to test this in court. If California passes a law that says that the universities have to allow their undocumented students to fully participate in the university, then they can do that."
