The Volokh Conspiracy
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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.
