The following is a lightly edited transcript of the January 24 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Donald Trump suffered his first big loss in court on Thursday when a federal judge temporarily halted Trump’s executive order ending birthright citizenship in the face of lawsuits brought by a number of states. The judge delivered quite a smackdown, saying that the administration’s argument “boggles my mind,” and that he hadn’t seen anything quite this absurd in his four decades on the bench.
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.
Rob Bonta: My great pleasure to be with you.
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?
Bonta: It’s an important development, exactly what we hoped for, asked for, expected, and it’s completely consistent with the Constitution. On day one of his term as president, President Trump trampled over the U.S. Constitution, attacked children, attacked U.S. citizens, and took an action that was un-American by trying to revoke birthright citizenship.
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.
Presidential actions always yield to the U.S. Constitution. And the president cannot, with one sweep of his pen, amend the Constitution, which is what he’s trying to do. So he is overstepping his jurisdiction by a mile, and the court held him in check today, which is appropriate. It does bode well for the future, in that unlawful, unconstitutional conduct of Mr. Trump will be stopped in court.
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.
So we’ll see what the next case holds. Everyone is fact-specific, but this is a good action. In day three of the Trump administration, he’s already been told that he’s doing things that are blatantly unconstitutional.
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?
Bonta: It’s a scare tactic. They’re trying to bully states and local jurisdictions into doing their job for them, and it’s unconstitutional in that regard. There is clear Tenth Amendment precedent, the anti-commandeering principle that is well established therein that the federal government cannot commandeer or conscript or force states or local jurisdictions to do their job for them.
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: Under California law, state and local law enforcement cannot carry out federal immigration enforcement, correct? If I understand this correctly, that means that if the Trump administration were to command state and local law enforcement to participate in some way in carrying out something like mass deportations or even ask them to, then they cannot do this by state law, correct?
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.
So we’re focused on violent, serious, sexual crimes, and in holding folks accountable, using our resources to keep the people safe. We also think it makes us safer when victims or witnesses are willing to come forward to report the crimes to law enforcement instead of fearing retaliation and therefore being chilled into silence. So we are fully within our rights under the Tenth Amendment as upheld by a court of law. And the memorandum that we all saw coming out of the United States Department of Justice is just fatally flawed and unconstitutional in many respects.
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?
Bonta: Yeah, that’s generally right. There are some exceptions for transfers in jail or prison for serious and violent enumerated felonies as well as misdemeanors. But generally, local law enforcement, police departments, sheriff’s departments, state law enforcement may not investigate or arrest or interrogate or detain individuals based on civil immigration enforcement. And the federal government, under the Tenth Amendment of the United States Constitution, cannot force them to.
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.
Sargent: Are you saying, AG, that there would be a potential chilling effect here if somehow California were to comply with what the Trump administration is saying it wants to do? It could potentially make Californians less safe, and that witnesses to crimes or people aware of pending crimes, if they’re undocumented, might be more reluctant to alert the authorities? Is that the point?
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.
Same with a witness. If they observe a crime right in front of their face—they see someone get assaulted, they see someone, God forbid, raped or murdered—and if they feel that they will come forward and they would be attacked and they would be put in jeopardy because of immigration enforcement being conducted by a local law enforcement agency, then they’re much less likely to come forward. We want witnesses to come forward. We want victims to report crime. That helps law enforcement hold offenders accountable and deter future crime from happening and make our communities safer in the process.
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?
Bonta: I’m not specifically aware of that that’s their game plan. And if it is, it doesn’t pass legal muster. There is no requirement that states must in response to requests to assist in civil immigration enforcement, deploy their resources and move them away from actual crime fighting and investigating in their state and also jeopardizing witnesses and victims from coming forward. No requirement.
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.
Sargent: You’ve said that if Trump’s threats turn into illegal actions, you’d be prepared to take legal action yourselves, the state of California, in response. You’ve got to be preparing here for every eventuality, I hope. So what illegal actions by the Trump administration do you guys view as genuinely plausible, and how would you respond legally to those? In other words, can you explain to listeners what you mean when you say if Trump’s threats turn into illegal actions, you’ll be ready?
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.
And preparation is something that we were going to continue to prioritize and emphasize, including with respect to this memo. Everything that the Trump administration, Mr. Trump, his inner circle, Project 2025 says, we expect it to happen. We take them and those sources all at their word. A memo—a declaration of a position and a direction to the federal employees that are receiving that memo— is one thing, but until actual action is taken, there’s nothing for us to do.
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.
S.B. 54, the California Values Act that sets forth all of the rules in the state of California that I’ve just talked about, that we’re talking about, that law enforcement generally cannot participate in immigration enforcement, is fully legal, fully constitutional. What they’re doing is they are trying to intimidate and bully hardworking public employees who are following the law as upheld by the federal courts. And it’s definitely a scare tactic and an attempt to bully.
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?
Bonta: Yeah. And if they are turning their unlawful threats, or their threats in the memo, into unlawful action, then that unlawful action is something that we can go to court to prevent, on a go-forward basis, from happening again and also to get a potential recovery for any implementation of those unlawful actions against the individuals or entities that they targeted. Constitutional rights, when violated, can be vindicated in a court of law. And we would go to court to ensure that our constitutional rights are upheld, are vindicated; that there’s accountability for and orders from the court to prevent the violations thereto by the federal government from ever happening again, and also remedies for any harm caused by those unconstitutional actions.
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?
Bonta: We could go to court and make our presentation saying, Here’s what the Trump administration is doing. They are prosecuting officials for exercising their constitutional rights. It is wrong to do so. There’s no basis for a prosecution, certainly no basis for any criminal activity. And we want a court order saying that they can no longer take those actions and provide the standard that is required for them to meet if there’s going to be any prosecution, and declare that the actions that they’ve taken, and should there be more in the same vein, are unconstitutional, unlawful, and prohibited by a court. If they continue to do it, they are in contempt of court, and they would be violating a standing active court order. If they have brought someone to arrest somebody, prosecuted someone, put them in jail, cause harm whether it be economically or pain and suffering or whatever it might be, that person might also have a claim of their own. They’d probably have an individual private attorney who would bring that case.
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.
Sargent: So on this front, you’ve said you’ll defend immigrants from the Trump administration. The California legislature is appropriating $25 million for fighting Trump in court on this. What can you affirmatively do to resist Trump’s agenda beyond what we’re talking about here, beyond just telling law enforcement that they can’t assist, beyond defending law enforcement who are being maliciously prosecuted? Are there steps you can take beyond that, ones that don’t open you up to prosecution by Trump’s DOJ for obstructing federal law enforcement? What does that look like? How do you affirmatively do even more, and go above and beyond to protect California immigrants from Trump’s agenda?
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.
So when it comes to immigration, we stopped him from doing many things. We stopped him from rolling back DACA, Deferred Action for Childhood Arrivals. He tried to do that. We sued him in court. We stopped him because he broke the law. We stopped him from broadening the public charge rule, also in the immigration space. We sued him when he inappropriately used funds to build the border wall. We sued him when he challenged S.B. 54, the California Values Act, which is fully consistent with the Tenth Amendment. And court declared that S.B. 54 is constitutional and an appropriate law for a state to have.
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.
Sargent: You guys just won one in Washington on birthright citizenship. Is there standing to bring a lawsuit to, for example, try to halt Trump’s latest executive order on asylum? He’s essentially nullifying asylum entirely. Is there standing there to bring a lawsuit against that for the states?
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.
For asylum, in any attempts to roll it back, we would need to look at the basis, the process, his jurisdiction to act without congressional authority, should he have any. And if he’s violating the law in any of those ways or other ways, we would challenge it. At this time, we haven’t launched a lawsuit, but it’s something that we’re evaluating and we’re looking at all the different angles.
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?
Bonta: I think so. This is California, and I think so many eyes are looking west across this country to us to see what we do, to see how we stand up for our values, our people, our future, our progress, how we continue on our path to progress and what we do in response to Trump. And like with any president, we have shared constituents in California. All Californians are constituents of the president as well as the statewide leaders like myself, who are honored and privileged to be a constitutional officer. If there’s ways that we can work together, we will and we should.
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.
We’re not looking for a fight, but if Mr. Trump oversteps his jurisdiction, if he breaks the law, if he violates the constitution, we will stand up for the defining bedrock document of our nation and the rule of law and take him to court and hold him accountable and stop him from conducting his illegal activity.
Sargent: Attorney General Rob Bonta, thank you so much for coming on with us. We really appreciate it.
Bonta: Great for you to be here. Thanks, Greg, for having me.
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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