Trump Administration Lawyer Asserts That a State Courthouse is no Different from a Burger King

Posted in: Constitutional Law

Last week, U.S. District Judge Jed Rakoff heard oral argument in a case in which New York State and various other plaintiffs sued Immigration and Customs Enforcement (ICE) and other federal defendants challenging the Trump administration’s policy of taking undocumented immigrants into custody for potential deportation when they appear in state court on unrelated matters. Beyond the high stakes for individuals and the effective administration of justice by the states, the case raises important questions about the line between state and federal authority.

The Trump Policy and Its Dangers

New York City and other jurisdictions in New York State decline to provide more than the legally mandated cooperation and coordination with the Trump administration’s aggressive enforcement of the federal immigration laws. They are, to use a term that my colleague Stephen Yale-Loehr observes lacks a technical legal definition, “sanctuary” jurisdictions.

The Trump administration has struck back at sanctuary jurisdictions in various ways. For example, in one move that has itself been the subject of legal challenge, the administration has sought to withhold federal funds from sanctuary jurisdictions. In the case now before Judge Rakoff, the administration has attempted to make state courts the involuntary agents of federal immigration enforcement by making arrests in and around state courthouses. Although ICE defends this policy on grounds of necessity—if state and local officials do not cooperate with ICE, it must resort to other means of tracking people down, the federal government’s lawyers say—the policy can also be seen as an effort to punish states and localities for their failure to provide more than the minimally required legal cooperation.

Whether intended as punishment or not, the effect of the ICE policy is to undercut state and local justice systems. Undocumented immigrants who are the victims of or witnesses to crime will avoid coming to court if they know that doing so greatly increases the risk that they will be detained by ICE and then deported. The ICE policy thus jeopardizes the safety of everyone—not just undocumented immigrants—who depends on the effective administration of state courts, which are the backbone of the justice system in the United States.

Common Law Privilege

New York and the other plaintiffs contend that the federal policy is not merely dangerous but illegal. They invoke a centuries-old privilege against civil arrests in or around courthouses and court-related proceedings. That privilege was first recognized by judges in fifteenth century England, whence it came to the colonies, and has been followed ever since. And because no Act of Congress has displaced the common-law (that is, judge-made) privilege, New York argues, the privilege binds the federal government, including ICE.

The federal government offers four main counter-arguments. First, it invokes principles of administrative law that supposedly prevent the federal court even from hearing the case. Among other things, the federal government contends that the ICE policy does not take a form (such as an official regulation) that gives rise to judicial review of agency action.

Second, the federal government contends that the common-law privilege is narrower in scope than the plaintiffs describe. Federal government lawyers argue that the privilege does not apply to non-residents nor to arrests as opposed to service of process in civil suits.

Third, the federal government contends that, in any event, Congress did displace the common-law privilege. It points to a statutory provision that includes some limits on where federal officials may make immigration arrests; because that provision does not list state courthouses, the federal lawyers say, Congress tacitly authorized immigration arrests in such places. Somewhat more persuasively, the federal government also points to another statutory provision that establishes procedural requirements for persons whose removal proceedings resulted from their being detained at courthouses.

Fourth, the federal government observes that many of the cases on which New York and the other plaintiffs rely for the establishment of a broad privilege against civil arrest in or around courthouses involve state common law. But, the federal lawyers argue, under the Supremacy Clause of the Constitution, state law cannot constrain federal law enforcement. That is especially true, these lawyers contend, with respect to federal immigration law, where the federal government has broad power.


New York, the other plaintiffs, and various amicus briefs offer responses to each of the federal government’s objections. Here I will focus my attention on the third and fourth points only. The plaintiffs respond to the federal government’s claim that federal statutes displace common-law immunity by pointing out that no federal statute does that expressly. Yet Supreme Court cases—especially the 1991 ruling in Gregory v. Ashcroft—hold that if Congress wishes to apply federal law in a manner that upsets the established balance between state and federal authority, it must make its intention to do so “unmistakably clear in the language of the statute.” Congress did not do that with respect to civil arrests in or around state courthouses.

An examination of the facts of Gregory shows why it is a strong precedent for the plaintiffs. That case involved the application of the federal Age Discrimination in Employment Act (ADEA) to state court judges, who, under the Missouri Constitution, faced mandatory retirement at age 70. The ADEA makes no exceptions for state court judges, but that did not satisfy the Supreme Court. In order to satisfy the “unmistakable clarity” requirement, the Court held, it was insufficient that Congress failed to exempt state judges; congressional failure to refer to them expressly meant that federal law did not displace the state mandatory retirement rule.

During the oral argument last week, a federal government lawyer told Judge Rakoff that ICE’s authority to take people into custody in state court is as strong as its authority to do so “at a Burger King.” The Gregory case shows why that claim is wrong.

ICE can make arrests at a Burger King because no rule of law requires that Congress make its intention unmistakably clear if it wishes to extend its authority to restaurants. By contrast, state courts occupy a special place in our constitutional scheme. That is why the Court in Gregory required Congress to express its intentions with unmistakable clarity if federal law is to disrupt state court operations by extending the terms of judges who, under state law, are required to retire. It is equally if not more disruptive for ICE agents to undercut state court operations by threatening potentially vital victims and witnesses with arrest.

The foregoing answer also responds to the federal government’s fourth point. The plaintiffs can acknowledge that federal law displaces state common law when there is a true conflict. But here there is no conflict because federal law—read in light of the Gregory clear statement rule—is silent on its applicability to civil arrests in and around state courthouses.

The federal government in turn responds to the plaintiffs by invoking an Obama-era case: the 2012 ruling in Arizona v. United States. There the Supreme Court rejected Arizona’s efforts to “over-enforce” federal immigration law. The Trump administration now cites the case for the proposition that the federal government has very broad power over immigration, while the states have virtually none.

The reliance on Arizona is misplaced, however. In that case, Arizona was attempting to enforce federal immigration law and the Court said that in so doing it was stepping on the toes of the federal executive. Here, by contrast, New York courts are neither over-enforcing nor under-enforcing federal immigration law. They are not trying to do anything at all with federal immigration law; rather, they are simply trying to go about their ordinary business of trying criminal, family, contract, landlord-tenant, and the myriad other sorts of cases that routinely come before them.

Arizona limits the ability of states to adopt an immigration enforcement policy in conflict with the federal policy. It does not say that states must allow zealous enforcement of federal immigration law to undermine their other vital judicial functions—much less that they must do so in the absence of a clear warrant from Congress. Judge Rakoff should reject ICE’s motion to dismiss the lawsuit.

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