The Line the Courts Drew, and the Fight That Moved Around It

In April, the Ninth Circuit handed the Justice Department its first and only appellate victory in the sanctuary-jurisdiction fight. A three-judge panel unanimously struck down California's No Vigilantes Act, which required ICE agents to unmask and display identification during enforcement operations. The reason was straightforward: the law did not merely withhold state cooperation. It told federal agents what to do.

Denying federal agencies and officers that choice would chill federal law enforcement and deter applicants for law enforcement positions. — United States Department of Justice

The ruling was narrow, and it was narrow for a reason. The No Vigilantes Act directly regulated the conduct of federal officers — requiring them to show ID, dictating how they could operate in the field. That crossed a line the Supreme Court has held since 1997: under the anti-commandeering doctrine, states cannot commandeer or regulate the federal government itself. But they can control their own agents and their own resources. The Ninth Circuit's decision did not disturb that distinction. It confirmed it. The other major challenges that have reached a ruling have been dismissed, and the reasoning has been remarkably consistent. In March, a federal judge in Colorado threw out the DOJ's lawsuit against the state and Denver, citing the 1997 precedent and ruling that the federal government cannot compel state officials to implement federal programs ^[1]. In June, judges dismissed suits against New Jersey and Los Angeles on the same grounds — a state or city controlling its own employees and information is not the same as regulating the federal government ^[2][3]. The New Jersey judge noted the state's Immigrant Trust Directive had already been upheld in court twice ^[2]. Suits against Boston and Chicago met the same fate.

In the order, the court makes it clear that the federal government cannot force states and local governments to use their resources for federal civil immigration enforcement. — Philip J. Weiser

The line, by midsummer, was crisp enough for both sides to recite from memory. A state can bar its own police from asking about immigration status. It can refuse to share information with ICE. It can deny federal agents access to state facilities without a judicial warrant. What it cannot do is pass a law that directly governs how federal agents do their jobs. That is the boundary. And both sides have now decided to fight past it — not by testing the line in court, but by moving the conflict to terrain the courts never addressed. **The blue states: from shield to sword** The shift is visible in the language of the legislation. Early sanctuary policies were framed as non-cooperation: the state would not assist, would not share, would not detain. The new laws are reprisals. In January, California and Washington proposed banning former ICE agents from public employment — police departments, schools, administrative agencies ^[4]. The logic is not about withholding state resources. It is about imposing a professional penalty on individuals who worked for a federal agency the states oppose. In May, the Massachusetts Senate passed the Protect Act 37-3. The bill bars warrantless civil arrests at sensitive locations and bans new 287(g) agreements — the program that deputizes local officers to perform immigration enforcement. But it also creates civil liability allowing individuals to sue federal agents in state court for constitutional violations ^[5]. That is a structural escalation: it opens a state-court channel for damages against federal officers, a forum the federal government cannot easily control.

Across our Commonwealth, we are seeing children torn from their parents, students pulled off the street, and families living in fear — and we refuse to accept that as normal in Massachusetts — Karen Spilka

Illinois went further. It created an Accountability Commission to gather evidence for potential criminal prosecutions of federal agents ^[6]. California's proposed "No Kings Act" would simplify lawsuits against federal agents for constitutional violations ^[4]. Other proposals would tax the profits of private ICE detention contractors and end tax breaks for companies that do business with ICE ^[4]. Maine, which enacted three sanctuary laws in July after an ICE operation in Biddeford killed a man and federal agents detained farmworkers in Skowhegan — including an unaccompanied child arrested without an administrative warrant — went beyond passive non-cooperation to proactively bar information-sharing, require judicial warrants for facility access, and prevent landlords from sharing tenant data ^[7][8]. Governor Janet Mills and the state's congressional delegation were unable to get basic answers from DHS about the operations ^[8]. None of these measures directly regulates federal agents in the way the No Vigilantes Act did. They do not tell ICE officers what to do in the field. They impose consequences after the fact, or they wall off state resources more aggressively, or they create new legal liabilities in venues the federal government cannot preempt. They are designed to stay on the state's side of the anti-commandeering line while raising the cost of federal enforcement to a level the courtroom strategy never achieved. **The federal government: leverage without litigation** The DOJ has filed at least 14 lawsuits against sanctuary jurisdictions in the past year, and the campaign has expanded to 21 targets as of July ^[9][10]. But the courtroom record is thin, and the administration has not waited for better results. It has reached for tools that do not require a judge's signature. In April, DHS Secretary Markwayne Mullin threatened to withdraw Customs and Border Protection officers from international airports in sanctuary cities — New York, Los Angeles, Chicago, San Francisco, Seattle, Philadelphia, and New Orleans ^[11]. The threat was not subtle: if those cities would not cooperate with immigration enforcement, they could lose the federal personnel who process international travelers and cargo. No court had ordered it. No statute explicitly authorized it. It was leverage, pure and simple.

If cities are going to sit there and say that they’re not going to enforce immigration policies, then I’ll repeat myself and say it doesn’t make any sense for us to process international travelers through that city. — Markwayne Mullin

In February, the DC Circuit allowed the IRS to share taxpayer address information with ICE for approximately 1.28 million taxpayers ^[12]. The ruling did not involve sanctuary laws at all. It opened a federal-to-federal data channel that bypasses every state privacy protection, every information-sharing ban, every wall a state legislature could build. A state can tell its own agencies not to share data with ICE. It cannot stop the IRS from doing so. The White House also announced it would provide legal support to counties that challenge state bans on ICE cooperation ^[13]. And Senator Lindsey Graham proposed federal legislation to criminalize state officials who refuse to turn over individuals who have broken federal immigration law — a prison sentence for non-cooperation ^[6]. Each of these measures operates outside the doctrinal framework the courts have built. Mullin's airport threat does not compel state officials to do anything; it withdraws a federal service. The IRS-ICE data sharing is federal-to-federal. Graham's bill would create a new federal crime, not commandeer a state officer. The legal question the courts keep answering — can a state be forced to assist? — is simply not the question these tools ask. **The red states, and the fracture within** The same doctrinal logic is being applied in the opposite direction. Tennessee's Senate passed a bill requiring every sheriff's department to participate in the 287(g) program ^[14]. Indiana's legislature passed bills mandating ICE cooperation, and Kentucky Republicans proposed similar measures ^[14]. Where blue states forbid local officers from assisting federal immigration enforcement, red states compel them to — and both are, in their own way, exercises of state control over state agents, the very thing the courts have said states may do. The result is a conflict that no longer runs cleanly between the federal government and the states. It fractures within them. In Maryland, 17 of 24 sheriffs filed their own lawsuit against the state's Community Trust Act, claiming it interferes with their ability to coordinate with federal authorities ^[10]. One Maryland sheriff replaced a banned 287(g) agreement with an internal policy — "Special Order 26-001" — that achieves the same cooperation through a different name ^[15]. In Minnesota, Attorney General Keith Ellison issued a legal opinion blocking sheriffs from entering 287(g) agreements without county board approval ^[15]. In New York and Colorado, conservative local officials are defying state-level restrictions on ICE cooperation, and the White House is backing them ^[13]. The courts drew a line between what states can and cannot do. Both sides studied it, and both sides concluded the same thing: the line is real, it is enforceable, and the fight worth having is no longer on it. The fight has moved to airports and tax returns, to employment bans and liability suits, to sheriffs suing their own governors and the IRS handing over addresses by the million. The boundary is clear. The conflict simply stepped around it.