Trump’s ICE Problem—and Ours
As the disastrous immigration crackdown on the streets of Minneapolis unravels before the nation’s eyes, Americans should ask themselves the question an earlier generation asked about military operations in Vietnam:
Why are we in Minneapolis?
Vice President J.D. Vance recently said that “we’re focused on Minneapolis because that’s where we have the highest concentration of people who have violated our immigration laws.” This claim ranks with “they’re eating the pets” as an arrant lie—in fact, according to the Pew Research Center, 78 American metro areas have higher percentages of undocumented residents than does Minneapolis. Attorney General Pam Bondi recently suggested that the ICE operation should continue until Minnesota agrees to turn over confidential voter information, a tenuous connection at best. Trump himself was pretty explicit that he was sending ICE into Minneapolis because he doesn’t like Representative Ilhan Omar, the Minnesota Democrat, and thinks Somali-Americans—a group of entirely legal immigrants—are “garbage.”
In fact, the campaign’s objective is pretty clear. What the administration wants is for the city of Minneapolis, the state of Minnesota, and their people to give up their constitutional rights—rights guaranteed not only by the First Amendment but also, thanks to the conservative legal movement, by the Tenth Amendment.
Consider the peace terms offered this week by White House Border Czar Tom Homan: “The withdrawal of law enforcement resources here is dependent upon cooperation. . . . We have some agreements. We got more to talk about how we’re going to implement those agreements, but as we see that cooperation happen, then the redeployment will happen.” To put it in more soothing terms, consider the advice offered by Representative Mike Lawler, the New York Republican, in a bromide-rich op-ed in The New York Times: ICE agents may have been conducting “forceful operations” in Minneapolis, and should “reassess their tactics.”
This will lead to comprehensive immigration reform at an unspecified future time. But in the meantime, Minneapolis officials need to get with the deportation program: “irresponsible politicians” stop “standing behind sanctuary city policies that restrict necessary cooperation between immigration enforcement officers and state and local police.”
However it is worded, the “de-escalation” offered by Homan matches that proffered by Michael Corleone to a corrupt senator: “My offer is this. Nothing.”
While good children wait for the comprehensive-immigration-reform pony, the administration will continue raids in the community (bolstered by new ICE regulations broadening the asserted power of its agents to conduct warrantless arrests); suppress lawful dissent, including the arrest of non-violent protesters at a church; obstruct news coverage, enforced by arrests of journalists who dared to cover the church protest; and, if they decide it’s worth it, prosecute Minnesota’s governor and Minneapolis’s mayor for the crime of criticizing “Operation Metro Surge” (which Lawler claims is “de-legitimizing ICE”).
If this be “de-escalation,” make the most of it.
In fact, the main objective of the operation remains what Lawler delicately calls “necessary cooperation.” State and local authorities in Minneapolis must function as adjuncts to ICE. To cite Clausewitz’s definition of war, the battle of Minneapolis is “a continuation of political commerce, a carrying out of the same by other means”—in this case, a dispute over immigration policy carried out by means of pepperballs, gas, and bullets.
Localities must crack down on protests against ICE operations—not violent protests, but any protest at all. “The hostile rhetoric and dangerous threats and hate must stop,” Homan said. “And we all agreed to that. All, everybody I met here today, tell you, we got to stop the rhetoric, the hateful rhetoric that has caused an increase in assaults.” A more succinct summary was offered by Greg Bovino, the former Border Patrol “Commander at Large,” who advised citizens, “Don’t protest and don’t trespass.”
The root of the conflict is Trump’s hatred of the very notion of a “sanctuary city.” In his second term alone, he has issued no fewer than three Executive Orders denouncing states and cities that refuse to share information with Homeland Security about the immigration status of people they encounter. What stinks in the nostrils of the administration is the idea that any unit of government anywhere is allowed to disassociate itself from Trump’s agenda of “the largest deportation of criminals in American history.” One such order directed executive branch officials to make sure that jurisdictions “which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds. . . . [and] evaluate and undertake any other lawful actions, criminal or civil, that they deem warranted based on any such jurisdiction’s practices that interfere with the enforcement of Federal law”; to “pursue all necessary legal remedies and enforcement measures to end these violations and bring such jurisdictions into compliance with the laws of the United States.”
It’s worth looking closely at what enrages the administration so, and why they are legally powerless to do much about it. Both sets of federal demands—that citizens shut up and that states carry out federal policy—are barred by the Constitution. The First Amendment is the easy part of the question; it forbids the federal government, and even its “commanders,” from attacking the freedom of the press and from “abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Though not foreseen by the Framers, pepper balls count as an abridgment, as do actual bullets. And arresting journalists who cover peaceful protests goes further than even most Southern sheriffs went during the battle against Jim Crow.
The second federal demand also runs up against the Constitution. The complaint of Trump’s immigration authorities is that some cities and states don’t think the mass deportation is a good idea—or, for some of them, even consistent with basic morals. The voters of some cities and states object to partnership with ICE and its harassment of their neighbors; some elected officials don’t think spending local funds to support Trump is good husbandry; some local law enforcement officials don’t think that cooperating with ICE is good crime policy.
Trump likes to portray the motive for these state and local limits as “a lawless insurrection against the Federal Government’s constitutional authority to protect the territorial sovereignty of the United States and conduct a unified national policy on immigration.” It must be very sad for Trump to be told that anyone can defy his will; but attempting to coerce states into supporting federal policy is forbidden by doctrines skillfully constructed by conservative Justices over the past three decades.
The cases in question apply the Tenth Amendment’s oracular command that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In those words,
Tom Homan has met the enemy, and it is one of the conservative legal movement’s proudest creations: the “anti-commandeering” doctrine.
There is no real definition of “sanctuary city” or “state”—no government at any level claims the power to block federal authorities from enforcing immigration laws. What most such policies forbid is local police authorities (1) agreeing to work with ICE in making immigration arrests; (2) inquiring into the immigration status of those they come into contact with; (3) notifying federal authorities of the immigration status of those they encounter or arrest; and (4) holding immigrants in jail or prisons who aren’t legally being detained (either because there was not enough evidence to charge them with a crime or because their sentence is up) nonetheless on the strength of a immigration “detainer”—an administrative request that the state authorities hold the individual until ICE can pick him or her up.
These policies might better be called “non-cooperation” agreements, and coercing cooperation is just what “anti-commandeering” forbids.
A federal statute, 8 U.S.C. § 1357(g) (usually called the “287(g) program”), allows states and localities to voluntarily enter into agreements to help enforce immigration law—but the emphasis is on “voluntary,” and the agreements must be in writing and approved by Washington in advance. And 8 U.S.C. § 1373, the information-sharing statute, says that states and local governments cannot bar their employees from sharing information with federal immigration authorities about a person’s citizenship or immigration status. Both the first and second Trump administrations have attempted to enforce these statutes by cutting off federal funds to states that don’t cooperate with ICE.
It can be argued that “sanctuary” policies are a bad policy; but if you believe in “federalism”—the idea that having two separate levels of government sometimes produces good results—you have to note that in this case, there are also good arguments why some communities might not want follow Trump’s orders. For one thing, working with ICE can sour relations between local police and the communities they serve; for another, allowing immigration issues to become part of local criminal enforcement may mean that witnesses and victims who have immigration issues will fade into the shadows rather than cooperate with police and courts; and finally, holding people in jail when there’s no legal reason to do so can create serious liability problems for states. (If the state holds prisoners without legal grounds, federal law provides for a lawsuit against the state; ICE, being federal, is immune.) In other words, treating Trump’s orders as compulsory requires states to adopt federal immigration policies, alter their own crime-prevention policies, violate their state laws, and risk expense to the state.
That certainly seems a lot like “commandeering” in Supreme Court-speak. The doctrine originated in a 1992 case called New York v. United States. An obscure law called the “Low-Level Radioactive Waste Policy Amendments Act” required states either to (1) create low-level nuclear waste landfills, (2) reach interstate compacts to use landfills in other states, or (3) “take title”—that is, assume state ownership of the waste, and its attached liability for any accidents. Justice Sandra Day O’Connor wrote that the “take title” provision “crossed the line distinguishing encouragement from coercion.” Congress could try to persuade or bribe states to make arrangements for the waste, she wrote, but “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”
Five years later, the Court extended the “anti-commandeering” rule to protect state and local executive officials. The Brady Handgun Violence Prevention Act created a requirement that anyone seeking to buy a pistol must undergo a background check. The law also established a federal database for those checks—but recognizing that such a database would take time to build and the law might spark a wave of panic buying, the act required that, until the database came online, the “chief local law enforcement officer” of any city or county must conduct the checks.
Two Western sheriffs sued to block the “chief officer” requirement, and the Supreme Court agreed. In an opinion by Justice Antonin Scalia, the 5-4 majority voided the requirement: “The power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.”
Though obscure to most lay people, “anti-commandeering” is very fresh in the minds of constitutional lawyers: the Court under Chief Justice John Roberts reaffirmed it in 2018 in a case called Murphy v. National Collegiate Athletic Association. A federal statute forbade states to “sponsor, operate, advertise, promote, license, or authorize by law or compact” gambling on collegiate sports. New Jersey bridled under the restriction (Hey, look, it’s Jersey, amirite?) and found a way around it; rather than authorizing college sports betting by law, the state repealed its laws banning it. The NCAA sued, arguing that failing to forbid college sports betting was actually “authorizing” it; but when the case reached the Supreme Court, the majority found that the federal statute itself was a direct regulation of the state: “[T]here is simply no way to understand the provision prohibiting state authorization as anything other than a direct command to the States,” Justice Samuel Alito wrote. “And that is exactly what the anticommandeering rule does not allow.”
Ah, you say, that may be all very well when the issue is actual coercion; but in these fund-cutoff cases, Trump isn’t ordering the states to cooperate with ICE; instead, he is directing the executive branch to hold up grant funds from states that won’t. Congress has the “spending power” to condition federal grants on states following federal rules. Cooperation is voluntary; if the states don’t want the money, they can just keep their “sanctuary” policies.
Chief Justice John G. Roberts would like a word.
In National Federation of Independent Business v. Sebelius, the famous “Obamacare case,” the court upheld the Affordable Care Act’s “individual mandate” as a tax—but it struck down a separate provision that offered each state a massive increase in Medicaid funding if it would expand eligibility for Medicaid; states that refused might have their Medicaid funding cut or blocked. Financially, it was a real deal for the states (at oral argument, Justice Elena Kagan compared it to saying “I’m going to give you s$10 million a year to come work for me”), but the Court’s majority opinion, written by the Chief Justice, held that it was too good. Government can use its spending power to “encourage” the states to adopt federal policies, but in this case, “the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’—it is a gun to the head.” Roberts called the threat of Medicaid cuts “economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”
So far, every federal court that has considered Trump’s attempted “sanctuary” fund cuts has agreed that they violate the “anti-commandeering” principle. Eventually, the issue will reach the Supreme Court, which seems to have a somewhat elastic view of precedent—but until and unless that happens, the fund-blocking mechanism is a non-starter.
Stymied in their efforts to cut funds, Trump has penalized Minneapolis with a swarm of ICE and other Homeland Security police, operating with no real rules and no tolerance for anyone—citizen or immigrant—who wants to protest. And in the gun-to-the-head department, the administration’s criminal probe of Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey is the stuff of Russian Roulette.
So, this is why we are in Minneapolis. Tom Homan’s “conciliatory” words are largely cosmetic. Consider the terms: the raids, like the proverbial beatings, will continue until morale improves; indeed, ICE, which already has granted itself the power to invade private homes without a judicial warrant, has just expanded its claim of authority to conduct warrantless arrests of anyone who looks to agents like an immigrant. Protesting ICE actions then is “domestic terrorism,” which risks execution; observing or filming is “obstruction” and merits beating and arrest; news coverage will result in federal charges; news coverage is “conspiracy” against the government, and Governor Walz and Mayor Frey can be prosecuted for the “crime” of criticizing ICE.
Homan has also suggested that there will be a drawdown of federal forces. This may be welcome, if true. But bear in mind that the federal presence in Minneapolis is so heavy that feds outnumber local law enforcement by a staggering five to one. There needs to be one heap of drawdown before Minneapolis ceases to be occupied territory. Neither state leaders, local officials, nor citizens in the street have agreed to withdraw their protests in exchange for a few semi-soothing words.
So let’s be serious: stymied in its use of a metaphorical “gun to the head,” the administration has chosen actual guns to the head. The “commandeering” seems flagrant. The Court has been bold in opposing abstract entries in the Federal Register that “dragoon” the states. We will see how bold it is now that Trump has sent in actual dragoons.
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