Recent protests—some violent—against federal immigration enforcement operations and personnel in Los Angeles (and other major American cities) have prompted responses and generated discussions, including by federal and state political leaders, concerning the appropriate powers, roles, responsibilities, and relationships of national and state governments. As scholars of constitutional law who have thought and written extensively about federalism, we think this a good occasion to revisit some core principles and lay out how they apply to current events, and in the course of doing so to correct some prominent errors and misconceptions.
Principle #1: The national government cannot compel state officers to exercise state executive powers to enforce federal immigration law.
President Donald Trump and other members of his administration have long complained about California’s refusal to provide assistance to federal immigration enforcement. California is a self-declared sanctuary state; state law (part of the “California Values Act”) sharply limits cooperation between California police and federal immigration authorities. (In his first term, President Trump sued California, arguing that state law improperly impeded federal immigration laws and was thus preempted. In that litigation, the district court denied the administration’s request for preliminary injunctive relief and the Ninth Circuit affirmed that denial.)
As a matter of federal constitutional law under current Supreme Court doctrine, California is entitled to choose not to help federal agents enforce immigration law. The Supreme Court has held in its anti-commandeering line of cases that the Constitution bars the federal government from requiring state and local executive officials and employees—including law enforcement officers—to execute federal laws. In Printz v. United States, the Court invalidated provisions of the federal Brady Handgun Violence Prevention Act that required local law enforcement officials to conduct federally required background checks prior to firearms purchases. Invoking the Tenth Amendment and structural protections for federalism, Justice Antonin Scalia for the Court wrote: “the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.” On its face, that rule would clearly apply to state refusals to assist ICE in investigating, arresting, and incarcerating individuals for violations of immigration law. It would even apply to state refusals to hold (or “detain”) persons already in state custody for longer than would otherwise be appropriate, so as to allow federal officials to arrive at the jail to make an arrest. As a constitutional matter, California can simply say no.
Two (related) caveats bear flagging. First, it is important not to exaggerate the reach of the anti-commandeering principle. All of the Court’s anti-commandeering cases involve federal statutes enacted under Congress’s Article I powers. The principle therefore applies to immigration laws (which are enacted under Article I). But it may very well not apply when Congress legislates under its separate powers to enforce the Reconstruction-era Amendments, especially when Congress enlists states to help enforce voting protections. Second, it is not clear to us that the current Court, if an opportunity arose, would fully embrace the holding of Printz. Printz (involving state executive commandeering) was more controversial among leading academics than was New York v. United States (which invalidated state legislative commandeering.) And while both cases were decided by 5-4 votes, New York was emphatically reaffirmed (and carelessly applied) less than a decade ago by at least 7 (if not more) Justices in Murphy v. NCAA, whereas the Court has not invalidated another federal commandeering of state executive officials since Printz itself. Given changes in the membership of the Court, and an apparent receptivity by the current Justices to entertain arguments about the constitutional wrongness of past rulings, we think it is possible that in a case in the coming years Printz could be overturned, or at least limited (e.g., so as not to apply to the immigration setting or to federal requests for information that is already in a state’s possession). For now, though, the case is good law and supports California’s refusal to aid ICE.
Principle # 2: States cannot impede or obstruct federal immigration enforcement.
Although the federal government cannot compel states to engage or assist in the enforcement of federal immigration law, states are not allowed to hinder or hold up enforcement by ICE agents. The Supremacy Clause of the Constitution bars states from any sort of interference with the execution of federal law or the operations of the federal government. The Court famously and forcefully articulated that principle in McCulloch v. Maryland (invalidating a state tax on a branch of the Bank of the United States) and has reaffirmed it many times since. A state doesn’t have to help the feds, but it cannot hamper them either.
To be sure, the line between not helping, on the one hand, and impeding or obstructing, on the other, might not always be clear. But there are easy cases. State law enforcement officers cannot, for example, physically prevent ICE agents from moving through Los Angeles, entering buildings (including courthouses and other state government buildings) otherwise open to the public, or executing warrants on private residences. State officials cannot tip off individuals that federal agents are planning enforcement actions. State officials cannot hide, shelter, or move individuals to help those individuals elude federal capture. State officials cannot slow down federal agents to give targets an opportunity to evade arrest. McCulloch sweeps broadly.
Principle # 3. Apart from resisting commandeering, states cannot discriminate against the federal government.
One of the things that made the McCulloch case so easy was that Maryland’s tax applied only against—and was discriminatory towards—the federal government, and such discrimination is generally a no-no. It is true that when a state declines a federal request to help, there is a sense in which it may be discriminating against the federal government (to the extent that it might entertain requests by other entities to assist in various ways). But this (limited) power to decline to enforce federal law is an exception to the general rule that states cannot discriminate against federal entities or operations. Accordingly, even though a state cannot be compelled to lend a hand to federal enforcement, the state cannot otherwise withhold from the federal government assistance or benefits that it generally makes available to others, even if those benefits might in some meaningful sense facilitate federal enforcement of policies the state disfavors. For example, a state cannot prevent federal agents from entering state courthouses or other state government buildings—or parts of those buildings—that are open to members of the public, even though allowing federal officials to “use” state property as a locus of arrest makes federal enforcement more feasible. If other individuals can be in the lobby of a state courthouse, say, then the state cannot block ICE officers from going there, too, for the purpose of detaining an individual under the immigration laws. It matters not that a state might have countervailing interests, such as ensuring individuals show up for state court hearings. Similarly, states cannot discriminatorily forbid ICE personnel or equipment from roadways or fueling stations or airport facilities and the like, even though federal use of these state-maintained facilities means that states are, in effect, facilitating federal operations. Although states may seek compensation for takings of any state property that the feds seize, the Printz anti-commandeering principle is concerned not so much with state control of property; it is instead intended to permit states to control the way they choose to discharge their own coercive, executive powers. Unless the federal government is demanding that a state exercise its coercive executive powers in the direct execution of federal law, the Printz principle would not seem to be implicated (as least as that principle was elucidated in Printz itself).
This principle of non-discrimination easily extends to the help of the police in ensuring safety. On June 6, after a large crowd of protesters surrounded the Edward R. Roybal Federal Building in downtown Los Angeles and confronted (and allegedly assaulted) ICE agents outside, the agency sought immediate assistance from the LAPD. By every account, help took a while to arrive. Accusing LAPD of slow-walking the response, DHS says it took two hours for the police to get to the scene. The LAPD Chief, citing traffic and crowd conditions, says the response time was no more than 40 minutes. (The next day, President Trump issued an executive order federalizing National Guard personnel. More on that below.)
Whether it took two hours or 40 minutes to respond, the Constitution bars LAPD from treating federal officers (or facilities) who seek protection from violence against them or their property any differently from how it treats other members of the public seeking similar help against people who are violating state laws. It would flout the Supremacy Clause for a police department that would ordinarily dispatch aid to people who call 911 for help to simply hang up after learning a caller happens to be a federal officer. So, too, it would violate the Supremacy Clause for a department to delay or deprioritize or reduce its response merely because a federal agent was the alleged victim. (In the same way, if a city generally provides firefighting protection to property within the city, fire officials cannot decide to let a federal courthouse or office building burn down because the federal policies that those facilities help serve are disfavored by the state or local officials or electorate.)
When state officials are required to enforce state law in a non-discriminatory way, the Printz anti-commandeering principle simply doesn’t come into play: states are not being asked (or required) to enforce or implement federal law, they are simply being told to implement state law in an even-handed manner.
Principle # 4: Motive matters
The preceding examples tee up, of course, the difficult factual question of whether a state has actually treated a federal agent differently because of that agent’s federal status. It is very hard for most outsiders to know whether the LAPD’s response time—40 minutes or two hours—represented just (problematically slow) business as usual (as the police chief says) or a purposely slowed response (as DHS contends).
The incident highlights the knotty issue, which appears across many areas of constitutional law, of determining why government did what it did. Scores of cases, including in the areas of equal protection and the First Amendment, turn on determinations about the motives of government actors. Motive is easy to hide and so hard to prove. Even 40 minutes seems to us a prolonged response time (imagine waiting that long after dialing 911 to report a home intruder), but we might never know whether on June 6, the LAPD gave ICE a cold shoulder.
Principle # 5: Some kind of federal self-help has to be available.
Perhaps because even 40 minutes seems like a long time (regardless of what motivated the delay), President Trump took the unusual step of mobilizing California National Guard troops (and more recently deploying a small group of Marines) to Los Angeles. Unsurprisingly, many California officials and elected representatives have complained that these actions were unnecessary (and inflammatory), that the President did not comply with federal statutory requirements for mobilization, and that the mobilization and Marine deployment violates the federal Posse Comitatus Act (which prohibits, unless an exception applies, the use of the military for civil law enforcement). California officials have sued the Trump administration, asserting that his mobilization of the Guard and deployment of the Marines is unlawful. U.S. District Judge Charles Breyer has issued a temporary injunction against the mobilization of the California National Guard. The government has appealed that order to the U.S. Court of Appeals for the Ninth Circuit.
Rather than attempt a comprehensive analysis of legal or policy arguments about the dispatch of the federal(ized) troops (and we suspect that there is political grandstanding on all sides), we want to end with a very basic point. As a constitutional matter, the President, in whom executive power is vested, has authority—and indeed, we think an obligation—to deploy force, including military personnel, where necessary to safeguard federal personnel and federal property. The President does not need congressional authorization to do that. The Posse Comitatus Act simply doesn’t apply when the military is engaged in safeguarding federal personnel and federal property (and if it did apply it would likely be unconstitutional), as distinct from executing federal law.
It is, therefore, noteworthy that, whatever other grounds the President has asserted or might assert for deploying military force to Los Angeles, his June 7 order specifically states that the guard troops were being deployed to “protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.” Federal troops are not themselves enforcing domestic law; they are protecting the civilian federal officials who are doing that. And such protection is reflective of a basic presidential power.
It should then be obvious that the President does not need the permission of a state—and does not need to get approval of state government—before using federal force to protect federal personnel and federal property. We will see how the current litigation in the U.S. Court of Appeals for the Ninth Circuit plays out, and perhaps federal statutes could be read to require, where feasible, presidential notice to and consultation with governors with regard to the National Guards, which some people consider to be the successors to early state militias protected by the Second Amendment. (For this reason there may be different legal/constitutional rules regarding the National Guard versus the standing federal military.) But to conclude states must agree with the President before any kind of federalized military forces could be used would be to place the safety of federal personnel and federal property at the mercy of state government. As American history suggests, that could be a very dangerous scenario, which is why, for example, Presidents deployed the National Guard without state approval during the Civil Rights movement. Imagine, for example, that the federal voting examiners, responsible under the 1965 Voting Rights Act for going into the South to register voters, ought to be wholly dependent on local sheriffs for their safety. Or that the President should have been constrained from a military response to the firing in 1861 on the federal property known as Fort Sumter. Or, today, if protestors (including prominent state officials) could block federal troops from the streets of Los Angeles and rioters knew they had (at least) forty minutes to attack ICE agents and federal buildings before any meaningful law enforcement personnel would arrive. The Constitution simply does not make the well-being of federal employees and institutions dependent upon the states. In this vein, even if statutes are read as permissibly requiring a President to work through governors as regards the National Guard, are Angelinos really better off if, instead of California National Guardsmen and Guardswomen, Marines and National Guard troops from Red states whose governors are willing to assist the President are on the ground in Southern California? Even if the Ninth Circuit upholds Judge Breyer’s temporary injunction against President Trump’s mobilization of the California National Guard, ultimately the President has other ways to bring federal force to bear.
