The ICE Legal War Has Tipped Washington's Way

The most revealing document in this summer's immigration legal war was filed by a defendant. Arkansas, sued by the Justice Department over its in-state tuition law, conceded the point in its own filing rather than argue it. A state told a federal court, in writing, that its own law cannot stand.

We agree with the U.S. Department of Justice that federal law preempts state law in this case, and the state law should not be enforced. — Politics and government of Arkansas

The same surrender has emptied six state tuition laws. Texas, Kentucky, Oklahoma, Nebraska, Illinois and Kansas have all ended in-state tuition for undocumented students since the suits began, none of them at a judge's order ^[1][2]. The campaign now runs against twenty-five states and the District of Columbia, all on the strength of a 1996 federal statute, and the associate attorney general running it, Stanley Woodward Jr., has named where it stops ^[2].

Our efforts will not cease until President Trump’s promise is fulfilled: illegal aliens will not receive benefits denied to American citizens. — Stanley Woodward Jr.

Arkansas put the reasoning on paper; the other six just folded. No court had struck down a single tuition law when they did. This is capitulation on exposure: read the 1996 statute, weigh your own law against it, and give the policy up rather than litigate the losing point ^[1][2]. The front where judges have actually ruled has produced the same result, only with ink on it. Federal judges continue to refuse Washington's demands that state and local police be ordered into immigration enforcement ^[3]. That is the old fight, and it still goes the states' way. Since July, though, Washington has been winning a different set of cases: suits asking judges to strike down the states' own defensive laws — bans on local cooperation, sanctuary packages, even a rule for how federal agents may dress. Every one of those laws that has drawn a ruling has lost ^[4][3]. The mask ban went first. On July 1, Judge Robert Payne in Richmond barred Virginia from enforcing its ban on masked federal immigration agents, on the ground that a state cannot write conduct rules for federal officers doing federal work ^[4]. Philadelphia's turn came a day later, when Judge Chad Kenney blocked the city's "ICE Out" package of restrictions on dealing with ICE ^[4]. The Justice Department's argument came down to a single sentence.

For over 200 years, the Supreme Court has repeatedly recognized that states have no authority to regulate the Federal Government’s operations … Virginia’s Governor and Legislature apparently disagree with that well-established precedent. — United States Department of Justice

The third fell on September 1, and the ground was new: contract. Virginia had banned its state and local agencies from cooperating with ICE, the federal immigration agency, and the ban swept up the arrangements called 287(g) agreements, named for the section of federal immigration law that lets ICE deputize local officers and jail staff to do its work: checking inmates' status, holding them for federal pickup, in some places making arrests. Those agreements are signed contracts, and the judge held that a state law pulling agencies out of existing ones likely violates the Contracts Clause — the Constitution's rule that a state may not impair contracts already made — alongside the usual supremacy grounds, the rule that federal law overrides state law ^[3]. The carve-out matters as much as the holding. Virginia remains free to stop signing new agreements, and had already done so in February, when Governor Spanberger pulled the state police and corrections out of the program ^[5]. That carve-out points to where the fight has gone next. That same theory has also surfaced a rung below the statehouse, in the hands of the states' own officers. New York's rebellion is fifteen sheriffs deep: they are suing Governor Kathy Hochul in federal court to overturn the state's ban on local police cooperation with ICE, pleading the same Contracts Clause point that carried the day in Virginia and asking for an order that keeps their counties' existing agreements alive while the case runs ^[6]. The Justice Department has filed its own suit against the statute, and the state has gone after one sheriff by name, suing Rensselaer County's Kyle Bourgault in its own courts ^[6]. The sheriffs describe the position the law puts them in.

This isn’t just about 287(g). This is about tools being taken away from law enforcement to safely protect the people they are closest to. — Kyle Bourgault

Maryland's sheriffs got there earlier in the summer: seventeen of the state's twenty-four are suing over the Community Trust Act, the law that ended 287(g) agreements there ^[7]. And where counties are not suing, they are drafting. Carroll County Sheriff Jim DeWees replaced the formal agreement Maryland took from him with an internal directive, Special Order 26-001, an office memo that keeps the fingerprinting, the photographing and the 48-hour holds for ICE running exactly as before ^[8]. He says the ban's backers sold their constituents something the law does not deliver.

They were telling their constituents that this will keep local law enforcement or detention centers from communicating or working with ICE, and that’s just simply a lie. — Jim DeWees

New York's holdouts are running the same play with less paperwork. Eleven of the thirteen jurisdictions that had been cooperating are winding down on the law's schedule; a few counties, Rensselaer and Nassau among them, are vowing defiance ^[9]. Nassau County Executive Bruce Blakeman counts what voluntary cooperation has already produced.

We got rid of 2,000 illegal migrants with criminal records in Nassau County without raiding a church, a school, a daycare center, a hospital, because we cooperated with ICE. — Bruce Blakeman

What is left to the states themselves is procedure, and procedure had one good week this month. On September 11, a federal judge blocked ICE's planned 24-acre detention facility outside Gilroy, California on environmental grounds: no study of the hazardous materials on the site, a septic system too small for the plan ^[10]. California Attorney General Rob Bonta sued over how the project came together.

The Trump Administration tried to rush construction of this facility in secret, ignoring environmental safeguards and shutting out the communities that would bear the consequences. — Rob Bonta

New York, meanwhile, wrote the answer to the Virginia theory into its own law. The contracts under which its local jails hold ICE detainees expire on November 25, on the state's own terms ^[9]. When the last one lapses, there will be nothing left to impair. The wins, on either side, are smaller than a scoreboard makes them look. Every injunction issued in this war since July — the three that struck down state and city laws, the one that stopped the Gilroy facility — is preliminary: an early order that freezes things while the case underneath runs, not a verdict, and every one of those cases is still alive beneath it ^[3][4][10]. The tuition campaign has one loss on its books, a federal judge having dismissed its suit against Minnesota ^[2]. The federal government's most ambitious reach is, so far, only a memo. A Homeland Security document obtained by the watchdog group American Oversight explores designating National Guard troops deployed across state lines as immigration officers under an existing federal statute — a claimed route around the Posse Comitatus Act, the law that keeps soldiers out of domestic police work ^[11]. Critics of the idea have a name for it.

The stakes extend well beyond immigration: This memo gives the president a ready-made workaround for using military power at home whenever the administration decides its agenda demands it. — American Oversight

So far the idea lives in the memo and nowhere else. Enforcement has not waited on the paperwork: in late August, an ICE operation across Connecticut — inside a state that gives the agency no help — took more than 70 people in Danbury alone, with arrests estimated in the hundreds statewide, and public school attendance dropped by roughly 700 students in the days after ^[12]. Local businesses closed in protest on a "Day Without Immigrants" ^[12]. The sheriffs' lawsuit asks a federal judge to overturn the ban and keep the contracts alive, and no court has yet said whether a state can beat the Contracts Clause by simply waiting its own bargains out ^[6]. The one date already on the calendar is November 25: the day New York's own law lets the last of those contracts expire ^[9].