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Should California’s new attorney general sue Trump early and often? Absolutely not

The California state Senate is poised to confirm Xavier Becerra, a congressman and son of Mexican immigrants, as California’s next attorney general. Becerra’s appointment is a forceful rebuke to President Donald Trump’s politics of racial division and an inspiration to many.

Becerra’s rise comes as battle fever sweeps California’s progressives, who have urged him to be the “tip of the spear” in the anti-Trump resistance. Some have encouraged him to lead a “long, legal war” by suing the Trump administration early and often. Becerra even caught the spirit for a moment, calling for Trump to “come at us.”

This is a trap. It is unfair and unwise for progressives to back Becerra into a corner. In this right-wing political moment, a major legal case on our climate change laws or our policies benefiting Dreamers may well lead to a Trump White House victory, establishing precedents that far outlast this presidency. In fact, the cases Becerra chooses not to bring may be among his most important achievements. Courts can’t rule on what’s not before them.

Those who want Becerra to adopt Texas’ opposition to Obama as a template are mistaken. Texas had the ideological wind at its back in repeatedly suing Obama: Its suits against him were brought before conservative judges and an evenly divided, fairly predictable Supreme Court. California, by contrast, will face a Supreme Court remade in Trump’s image, with at least one and possibly two new justices, depending on the year.

As it concerns immigration, we suspect many will advise Becerra to immediately file lawsuits challenging Trump’s proposals, assuming that Becerra will be able to block or nullify such proposals. But, with few exceptions, our Constitution assigns exclusive authority over immigration policy to the federal government. Indeed, progressives relied on this principle in petitioning the Supreme Court to invalidate Arizona’s anti-immigrant law SB 1070, and to block California’s Proposition 187, which aimed to prevent immigrants in the country illegally from accessing state-funded health and education programs. Asking a federal court to overturn federal immigration policies could be a fool’s errand.

Becerra still holds the power to confront Trump. However, progressives need to manage their expectations and adjust their tactics. Becerra will need to box, not brawl. For example, he should exploit gaps created by lax federal oversight. Under Trump’s deeply conservative nominees for attorney general and Labor secretary, we may see egregious lapses in civil rights protection, prosecution of police abuse, and accountability for unfair labor practices. Becerra should bring enforcement actions whenever federal agencies ignore serious abuses.

He should also look beyond the courts. As attorney general, he can build a statewide coalition of police chiefs and sheriffs who refuse to deputize cops as Immigration and Customs Enforcement agents. He can also instruct state prosecutors to consider immigration consequences in plea bargaining, and ensure local law enforcement’s compliance with the state’s TRUST Act, which limits the circumstances under which local jails can turn over arrestees to ICE. These strategies don’t require litigation.

Becerra can, furthermore, build national support for California initiatives among his fellow state attorneys general. One can easily envision him building a formal, nationwide coalition of progressive “top cops.” They could barnstorm the Hill to oppose attempts to limit the enforcement authority of state attorneys general and defend state efforts to decriminalize marijuana. This same group could advocate stronger penalties for police abuse, labor violations and environmental degradation.

Legal showdowns may be inevitable if the federal government attempts to invalidate California laws or if Trump issues an executive order revoking Deferred Action for Childhood Arrivals (DACA) protections from hundreds of thousands of California citizens. Becerra will need to ferociously defend Californians in such cases. But his goals should be attrition and delay – an endless loop of litigation and red tape, gumming up Trump’s deportation machine. A clean legal victory over Trump in a hostile forum is not the most likely outcome.

Progressives are rightly thrilled with Becerra as our next attorney general. But they shouldn’t expect him to wage battles he cannot win.

To read the article in Spanish, click here

Michael Troncoso is a former chief counsel and chief of public policy in the California Attorney General’s office. Debbie Mesloh is a former senior advisor to the California attorney general and a former White House appointee under President Obama. 

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