The Volokh Conspiracy

This article is cross-posted (with permission) from the Brennan Center State Court Report website, where it was originally published; it builds in part on my earlier article about this case, published in Lawfare. Below is the new Brennan Center article:

Federal district court Judge Katherine Menendez issued a ruling Saturday denying a motion for a preliminary injunction blocking the deployment of thousands of ICE and other federal agents to the Twin Cities.

Minnesota and the cities of Minneapolis and St. Paul filed an important lawsuit on January 12 arguing that Operation Metro Surge, as the Trump administration refers to the mass federal deployment, violates the 10th Amendment. They argue that the administration is using the deployment to try to coerce them into giving up their "sanctuary" laws, which restrict state and local assistance to federal immigration enforcement. They also say the administration's actions have disrupted state and local government functions, including the state constitutional guarantee to education and the ability of state and local law enforcement to address crime and protect Minnesotans' safety — which is "one of the most basic rights reserved to the States and their municipalities" in our federalist system.

Preliminary rulings like the one that came down this weekend often presage the court's decision on the merits. But, unusually, the judge emphasized that her decision doesn't necessarily foreshadow a final ruling for the federal government, and that it is instead based on her uncertainty about some key issues. The ultimate outcome of the case remains unclear, especially since any decision reached by the district court will almost certainly be appealed. But the suit deserves to prevail; a contrary decision would set a dangerous precedent.

What is the 10th Amendment?

The 10th Amendment states that "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 Federalist 28, Alexander Hamilton assured readers that: "It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority." He emphasized that they can use their control of "the organs of the civil power" to "adopt a regular plan of opposition." Minnesota's resistance to oppressive — and, likely, illegal — federal policies is an example of such "opposition," and the 10th Amendment protects the state and its local governments against federal usurpation of their authority over their own employees and resources.

A series of Supreme Court decisions primarily supported by conservative justices, such as New York v. United States (1992), Printz v. United States (1997), and Murphy v. NCAA (2018), hold that the federal government cannot "commandeer" state and local officials to do the federal government's bidding or to help enforce federal laws. And in multiple decisions during the first Trump administration and continuing in the second, numerous lower federal courts ruled that the president could not order states to aid in immigration enforcement actions and could not withhold federal funds from sanctuary jurisdictions where doing so would be coercive or where Congress had not authorized immigration-related grants.

Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment and is a central element of state autonomy and sovereignty. If the federal government could coerce states into giving up that control, it could essentially neuter and render them almost totally subservient to the federal government.

Evidence described in the plaintiffs' filings and Menendez's decision extensively documents what appears to be the federal government's main motive for launching Operation Metro Surge: to pressure Minnesota's state and local governments into giving up their sanctuary policies. I highlighted additional evidence in a recent Lawfare article about this case, such as statements by Trump "border czar" Tom Homan last week that the administration would scale back the crackdown if state and local officials cooperated and provided greater access to jails.

An "Unprecedented" Case

As Menendez noted in her opinion, the current case isn't precisely analogous to previous court decisions on commandeering and federal coercion of states, and raises "unprecedented" issues. The earlier precedents largely dealt with either congressional laws directly imposing coercion or the withholding of federal funds from state and local governments. It is also true that many federal policies and law enforcement efforts can indirectly burden states in various ways and that the federal government often has the option of increasing enforcement efforts in states that refuse to help. Legal scholar Jonathan Adler emphasizes these points in his defense of the government's position in the case.

But, in this case, the "enforcement" effort has been undertaken for the specific, openly avowed purpose of punishing and coercing the states, not merely increasing enforcement to make up for its limitations on cooperation. In addition, the fact that many of the federal actions — including violations of First Amendment rights, illegal detentions, warrantless searches, and unjustified killing of protestors — are independently illegal also makes them coercive, in much the same way that a Mafia boss threatening to break your legs is coercive while threatening something he has a legal right to do is not. This illegality means private parties can bring lawsuits on other grounds, as some have. But it also bolsters a Tenth Amendment suit by states and localities. And the latter can be more effective for reasons I noted in my earlier Lawfare article.

Furthermore, as the Minnesota lawsuit documents, many of the federal actions here directly disrupt state and local government functions, such as public schools, emergency services, and local police. For example, federal raids and the threat of additional ones have forced many schools to close, preventing state and local officials from meeting their state constitutional obligations to provide an education, the state and cities say. That creates direct coercion of the states for purposes of commandeering, and is different from cases where federal enforcement efforts merely have an incidental impact on the states.

Even Otherwise Lawful Actions Can Be Coercive

Even otherwise legal federal actions become coercive if done on a large enough scale for the purpose of pressuring states. For example, Spending Clause coercion cases such as NFIB v. Sebelius (2012) — the famous Obamacare case — hold that conditioning a large enough amount of federal grants on state cooperation with a federal program qualifies as coercion, even though Congress generally has broad discretion to impose conditions on federal grants to states and local governments. Sending 3,000 armed federal officers to harass the public and disrupt state and local government functions is at least comparably coercive to threatening to withhold a large amount of grant money.

Chief Justice John Roberts famously described the grant condition struck down in NFIB as a metaphorical "gun to the head." Several lower court cases addressing attempted denial of federal funds to sanctuary cities reached similar conclusions. Operation Metro Surge is pretty close to a literal gun to the head, featuring coercion by actual armed agents with guns.

As I explained in my earlier Lawfare article, similar violence could be used to coerce states on a wide range of policy issues. The most obvious example is that of conservative "gun sanctuary" states, which limit cooperation with federal enforcement of gun control laws. If the federal government sent thousands of agents to harass gun owners and disrupt local government operations in order to coerce gun sanctuary jurisdictions into helping the feds, that would surely violate the 10th Amendment. If courts allow such coercion-by-violence, there would not be much left the anticommandeering rule or any other constitutional protection for state autonomy.

While NFIB and other conditional-grant cases dealt with Spending Clause issues, similar reasoning applies here. In both cases, federal government action, even if otherwise legal, becomes unconstitutional if it seeks to coercively usurp state government control over their own resources and personnel. Indeed, the 10th Amendment — a provision explicitly protecting state autonomy — is a more logical basis for restricting such coercion than the Spending Clause.

Menendez decided not to grant a preliminary injunction in part because the "unprecedented" nature of the situation weighs against doing so and in favor of waiting for a full resolution on the merits. Such hesitation is understandable. But it is important to remember that the situation is unprecedented in large part because coercion by armed paramilitary agents is actually more blatant and egregious than the type of commandeering addressed in previous cases.

Judge Menendez's Uncertainty

In addition, Menendez held back because of uncertainty over two other issues. First, though she recognized there was extensive evidence that the Trump administration's motive was to commandeer state resources for immigration enforcement, she suggested other evidence indicated there may be other motives, such as increasing enforcement of the law and combatting welfare fraud.

There has indeed been considerable welfare fraud in Minnesota, some of it committed by Somali immigrants. But there is no reason to think the deployment of thousands of armed federal agents can somehow curb welfare fraud, which requires investigation by accountants and other experts, not armed men in the streets. Similarly, as I have noted previously, it is implausible to think that such a massive effort is needed for enforcement of immigration laws, given that Minnesota has a much lower percentage of illegal migrants in its population than national average. And an administration genuinely interested in politically neutral law enforcement would itself not be engaging in widespread, brazen violations of the law in the process of "enforcement." Ultimately, the evidence overwhelmingly indicates that there would be no such massive federal operation in Minnesota absent a desire to engage in commandeering.

Second, Menendez worried there was no clear basis for determining exactly where to draw the line between legitimate federal law-enforcement efforts and unconstitutional coercion:

Quantitatively, Plaintiffs cannot point to what number of federal officers would demonstrate a de facto Tenth Amendment anticommandeering violation. Qualitatively, there is no clear way for the Court to determine at what point Defendants' alleged unlawful actions (e.g., racial profiling, excessive force, deployment of chemical irritants, wearing face coverings, switching license plates, overusing city parking lots, among others) becomes so problematic that they amount to unconstitutional coercion and an infringement on Minnesota's state sovereignty.

It may indeed be impossible to draw a precise numerical line. Commandeering and coercion are among the many legal doctrines that take the form of standards, rather than bright-line rules. Other examples include the Fourth Amendment's ban on unreasonable searches and seizures and the First Amendment's protection for freedom of speech, which does not draw a clear line between protected pure speech and unprotected speech closely linked to illegal conduct. Despite line-drawing difficulties, courts routinely enforce these doctrines.

Considerable precision is possible here, even if it cannot be absolutely perfect. Courts can and should enjoin federal operations — regardless of scale — that would not have been undertaken but for an unconstitutional motive related to coercion and commandeering. That seems clearly true of Operation Metro Surge. The line becomes even easier to draw when the operations in question also feature apparently extensive illegal actions by federal agents. As already noted, such illegality magnifies the coercion in question.

As Menendez noted, the plaintiffs "made a strong showing that Operation Metro Surge has had, and will likely continue to have, profound and even heartbreaking, consequences on the State of Minnesota, the Twin Cities, and Minnesotans. Since Operation Metro Surge began, there have been multiple shootings of Minnesota residents by federal immigration enforcement agents." In the last few weeks, federal agents killed two Minneapolis residents, Renee Good and Alexander Pretti, and shot another in the leg. The judge added that there was evidence that federal agents "have engaged in racial profiling, excessive use of force, and other harmful actions," and that the administration had done "nothing to refute the negative impacts described by Plaintiffs in almost every arena of daily life, from the expenditure of vast resources in police overtime to a plummeting of students' attendance in schools, from a delay in responding to emergency calls to extreme hardship for small businesses."

When such things are done for the avowed purpose of coercing state and local governments, we have a violation of the 10th Amendment. Menendez should so rule when she decides the case on the merits, and appellate courts should uphold any such decision.