My New Lawfare Article on "Minnesota's Compelling Tenth Amendment Case Against Trump's ICE Surge"

The article describes the suit, and explains why it deserves to prevail.

Earlier today, Lawfare published my article "Minnesota's Compelling 10th Amendment Case Against Trump's ICE Surge." Here is an excerpt:

The federal government's brutal and often illegal use of Immigration and Customs Enforcement (ICE) personnel and other federal agents in Minnesota has generated extensive litigation. On Jan. 12, one particularly crucial case was filed by the state of Minnesota and the cities of Minneapolis and St. Paul, arguing that the federal Metro Surge operation—deploying thousands of ICE and other federal agents to the Twin Cities—violates the 10th Amendment. That 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 a series of decisions supported primarily by conservative justices, such as Printz v. United States (1997) (written by conservative icon Justice Antonin Scalia), the Supreme Court has held that the federal government cannot "commandeer" state and local officials to do the federal government's bidding, or to help enforce federal laws.

Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment. In addition, as legal scholar Michael Rappaport has shown, the original meaning of the Constitution indicates that such control is a basic element of the sovereignty inherent in being a state in the first place….

Part of the purpose of the federal "surge" is to coerce Minnesota jurisdictions into giving up their sanctuary policies and using their resources to assist federal deportation efforts. As federal District Judge Katherine Menendez noted in a hearing in the case on Jan. 26, Trump administration officials have repeatedly indicated that this is one of their objectives. Attorney General Pam Bondi suggested as much in a Jan. 24 letter to Minnesota Gov. Tim Walz. A Jan. 16 White House statement explicitly indicates that Minnesota's "sanctuary defiance" is "responsibl[e] for the enhanced enforcement operations in Minnesota." A recent statement by Trump "border czar" Tom Homan indicates that the administration will not withdraw immigration enforcement officers from Minnesota unless state and local governments curb sanctuary policies and extend "cooperation" to federal immigration enforcers….

The Minnesota case is not exactly analogous to previous anti-commandeering rulings by federal courts. But that is in part because it represents an even more blatant violation of the 10th Amendment. In Printz and other cases, such as New York v. United States (1992) and Murphy v. NCAA, the Supreme Court struck down congressional legislation requiring states to help enforce various types of federal laws, or to enact legislation of their own. In a series of decisions during the first Trump administration, and continuing in the second, numerous lower federal courts ruled that the president cannot order states to aid in immigration enforcement actions, and cannot withhold federal funds from sanctuary jurisdictions in cases where doing so would be "coercive" or Congress had not authorized immigration-related conditions on recipients.

The administration's current actions are more egregious than those struck down in previous anti-commandeering rulings. Here, there is no congressional authorization for federal coercion of states; the president is acting on his own. And the direct use of force is even more blatantly coercive than illegally withholding federal grants. If the federal government cannot coerce states by enacting commandeering laws and imposing grant conditions, surely it cannot do so at the literal point of a gun….

If allowed to stand by the courts, the federal action in Minnesota would set an extremely dangerous precedent. It could easily be used against a variety of state policies, including those of conservative "gun sanctuaries"—such as Montana and Missouri—which restrict state and local assistance efforts to enforce federal gun control laws. A future Democratic administration could send thousands of armed agents to harass gun owners and disrupt state and local government operations until gun sanctuary jurisdictions drop their restrictions.

Indeed, the Minnesota operation has already threatened gun rights traditionally prized by conservatives. Administration officials have defended the killing of Alex Pretti on the grounds that he was carrying a gun at the time—even though he had a legal permit to do so, never drew the weapon, and federal agents took it from him before they shot him.

Comments

[CountmontyC]

As soon as I saw the headline I knew it was Somin.

[y81]

At least he has the grace to admit there isn't actually any authority ("not exactly analogous" is his phrase) for his proposition.

[JoeFromtheBronx]

Yes, other regular contributors don't tend to have relevant posts raising concerns that the Trump Administration is violating principles (First Amendment, Second Amendment, etc.) they are particularly concerned about. Orin Kerr did have Fourth Amendment posts recently, but only Somin (for some reason getting a lot of pushback from readers) has consistently applied his principles.

[grb]

JoeFromtheBronx : "but only Somin .... has consistently applied his principles."

JoeFromtheBronx : "... some reason getting a lot of pushback from readers ...."

Professor Somin is hated precisely because he's been consistent and principled. That seems to infuriate some Righties to no end.

[IANNAL]

Not only so much from the topic, but from the diction.

Professor - put the adjectives down, and slowly back away ...

[In any event, the analogy almost seems closer to Dole than Printz.]

[Swede425]

Hope Springs Eternal!

[thesafesurfer]

Another Somin Trump Derangement Syndrome delusion. Add this to the list of "tariffs cause recessions," and "illegal immigrants commit crimes at lower rates than citizens."

[dwb68]

Headline: Recalcitrant open borders advocate argues immigration restrictions shouldn't be enforced.

Wake me when Somin actually puts borders and limits around it.

I am all for Phds and Masters students coming here on an H1B. Criminals and drug dealers and cheap servile labor for Amazon call centers....not so much.

[Bob from Ohio]

George Wallace et al. should have thought of this in 1964, I guess.

[JonFrum]

Somin is a pimp. He was hired to push open borders, and he does it.

[GatorLawJay]

More Somin illogical slop not worthy of Reason Magazine.

Feds want to do legal immigration enforcement.
Feds ask state and local governments to help as it's more efficient, needs less Federal presence, and is safer when local authorities assist. Especially when it comes to detainer requests or protecting Federal agents from being interfered with /attacked.
A local jurisdiction refuses to cooperate, so Feds must use more Federal resources to execute the law.
Then the locality complains there is too much Federal presence.

Local governments don't have veto power over Federal statutes. It isn't coercion to say hey we need less federal assets in the area if you cooperate with us. Coercion is as if they cut off all Medicaid funds unless they cooperated. It's like blackmail. But the things have to be unrelated.

If a city in a county stops their police from catching child abusers, and the county police step in to arrest child abusers, the city can't say hey you are coercing us into doing something we don't want to do. (Not saying illegal aliens are child abusers using a ridiculous example to prove a point)

[Bored Lawyer]

Thank you. This is not "coercion" in any legally meaningful sense.

[Social Justice is neither]

Skipping over the part where Waltz, Frey and their staff were out telling people to harass ICE making the whole thing intentionally more tense and dangerous than even simply withdrawing support.

[loki13]

I think it is absolutely fascinating that Professor Somin manages to generate such a level of hatred in the threads for the mortal sin of consistency.

Back in the day, before we entered the stupidest timeline, I used to occasionally make fun of Somin because of that dogged consistency; after all, it seemed that there was no problem that Somin believed could not be solved through some application of libertarian principles ... often involving "voting with your feet" (for those that remember).

But I always admired him for the fact that he did follow his principles, and applied them regardless of partisan value. I might think that some of those principles were ... not in accord with reality, but at least he was consistent. And it's been fascinating to see people fall into the thrall of authoritarian populism.

I mean ... federalism? Fear of an overly powerful central government? Respect for the sovereignty of the states? These used to be core (small-c) conservative values, and they have been libertarian values long espoused by Somin ... and by others here ... but it seems that only Somin has been consistent in keeping those values.

As for the 10th Amendment argument... I think it's a very good argument in terms of the facts ... mostly because Bondi wrote a letter that said that this was a coercive act, and was an attempt to commandeer the state in an improper way. But it is a hard fit just because it's never been done like this. It's the issue with a lot of what's going on- it's so far beyond what has been previously done (or thought of) that there isn't really case law that squarely addresses it.

[JoeFromtheBronx]

absolutely fascinating

I think it is rather predictable. It is like shooting fish in a barrel, though I'm not into that sort of thing, to show the inconsistency. Few will have a road-to-Damascus moment about these things, though.

[Brett Bellmore]

I don't hate Somin as such. I can't honestly think of anybody I actually hate, (Annoyance, disdain, even contempt, sure, but not hate.) but I can tell you definitively that Somin doesn't make the cut.

I do, however, think he's obsessive enough on the topic of immigration that he's not to be taken seriously. His position on absolutely anything relating to the topic is pre-determined.

His position is that the federal government almost totally lacks any authority to regulate migration across the border, but that the absence of a federal power somehow does not invoke, yes, the 10th amendment. So that states lack that power, too.

That just doesn't match up with our constitutional structure.

I think it's clear that the federal government cannot mandate or even coerce state assistance in enforcing immigration laws. But that doesn't mean that states can actively oppose them, either, and on an EPC basis, ICE are as entitled to local police protection as anybody else is.

But as GatorLawJay says, observing that if Minnesota does not assist ICE, more ICE agents will be needed in Minnesota, does not rise to the level of coercion, no matter how much Minnesota's government does not want ICE agents to be in the state.

[Incunabulum]

Sovereignty of the state doesn't not extend to supporting active interference with federal law enforcement.

[Riva]

Interesting theory. And so all encompassing. In fact so all encompassing that it essentially admits of no exception. Virtually anything relating to state and federal relations can be described as the federal government "coercing" the states into action in one way or another, either by policy enactments or monetary incentives. But this is all unconstitutional now, or something. I suspect that something is the Trump administration, or maybe just any republican administration. If this county has to endure another democrat controlled government, nothing will be "coercive" to the author.

[mulched]

Ilya Somin standing in the schoolhouse door against the 101st Airborne.

[Incunabulum]

So . . . the states can manage federal immigration law when they do things Somin likes (MN) but *can not* do so when they do things Somin does not like (AZ).

Got it.