Trump’s unexpected legal strategy is raising eyebrows—borrowing directly from Barack Obama’s playbook

The Trump administration just cribbed a page — or two — from the Barack Obama administration’s playbook in an immigration lawsuit filed against the state of Illinois, Chicago, and Cook County.

On Thursday, the U.S. Department of Justice sued the Land of Lincoln, along with several named officials and government agencies, over sanctuary protections for undocumented immigrants.

“The challenged provisions of Illinois, Chicago, and Cook County law reflect their intentional effort to obstruct the Federal Government’s enforcement of federal immigration law and to impede consultation and communication between federal, state, and local law enforcement officials that is necessary for federal officials to carry out federal immigration law and keep Americans safe,” the lawsuit reads.

The legal theories in the Trump lawsuit are sourced from a 2010 lawsuit filed by the Obama administration against Arizona S.B. 1070, a statute widely known as the “show me your papers” law.

The Obama-era lawsuit ultimately made its way to the U.S. Supreme Court in a 2012 case stylized as Arizona v. United States. The result was largely a victory for federal authorities — applying the theory that most of the state law conflicted with or was otherwise preempted by federal immigration law on point.

“I welcome the Supreme Court’s decision to strike down major provisions of Arizona’s S.B. 1070 on federal preemption grounds,” then-attorney general Eric Holder said at the time. Holder added that the ruling “confirms the federal government’s exclusive authority to regulate in the area of immigration.”

The Trump administration’s Thursday lawsuit is also premised on the federal preemption doctrine.

“The United States has well-established, preeminent, and preemptive authority to regulate immigration matters,” the filing reads. “This authority derives from the United States Constitution, numerous acts of Congress, and binding U.S. Supreme Court precedent.”

The new lawsuit takes aim at various Illinois officials’ responses to Trump’s Jan. 20 executive order which framed illegal immigration as an “invasion” and “crisis.”

“Further exacerbating this national crisis, some of these aliens find safe havens from federal law enforcement detection in so-called Sanctuary Cities where they live and work among innocent Americans, who may later become their crime victims,” the filing goes on.

Not only is the Trump administration modeling its lawsuit on victories for federal supremacy won by the U.S. Department of Justice during the Obama years, but the latest lawsuit is the second time a Trump-run federal government has sued a state in this fashion.

In 2018 under then-attorney general Jeff Sessions, the first Trump administration filed a lawsuit against California over its sanctuary policies. That lawsuit ultimately went nowhere — the Court of Appeals for the Ninth Circuit ruled in the Golden State’s favor and the nation’s high court denied the government’s petition for writ of certiorari.

In fact, the lawsuit against Illinois uses some substantially similar language to the 2018 lawsuit against California.

Here’s what the 2018 lawsuit says, in relevant part:

Based on its enumerated powers and its constitutional power as a sovereign to control and conduct relations with foreign nations, the United States has broad authority to establish immigration laws, the execution of which the States cannot obstruct or discriminate against. See Arizona v. United States, 567 U.S. 387, 394-95 (2012); accord North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality); id. at 444-47 (Scalia, J., concurring).

Here’s what the current lawsuit says, in relevant part:

Based on its enumerated constitutional and sovereign powers to control and conduct relations with foreign nations, the Federal Government has broad authority to establish immigration laws, the execution of which States cannot obstruct or take discriminatory actions against. See Arizona v. United States, 567 U.S. 387, 394—95 (2012); accord North Dakota v. United States, 495 U.S. 423, 435 (1990) (plurality); id. at 444—47 (Scalia, J., concurring).

The almost verbatim use of legal arguments here is notable both in textual and real terms. Over the course of the Biden presidency, conservative politicians directly challenged federal preeminence in immigration law — to significant effect.

Now, the shoe has shifted once again and the Trump administration hopes the second time is the charm.