Confusion about Commandeering

Newly elected Virginia Governor Abigail Spanberger moved quickly to reverse her predecessor Glenn Youngkin's immigration policies. On her first day in office, Spanberger rescinded a Youngkin Executive Order that directed state law enforcement agencies to work cooperatively with U.S. Immigration and Customs Enforcement (ICE) and to assist in identifying, apprehending, and deporting noncitizens with criminal records. Spanberger subsequently terminated existing agreements between state law enforcement agencies and ICE regarding civil immigration enforcement.

Spanberger’s early moves on immigration align Virginia with other blue states, including California, Oregon, Washington, Illinois, and New Jersey, in refusing to assist the Trump Administration’s immigration enforcement efforts. Indeed, some states have gone further, enacting laws or adopting policies that prevent state and local law enforcement from providing even the most minimal assistance to ICE.

As incongruous as it may seem to some, state governments have no obligation to enforce federal immigration laws — or any other federal laws, for that matter. State governments are not instrumentalities or vassals of the federal government but rather sovereign entities with their own legal authority. The U.S. Constitution establishes that federal law is the “supreme law of the land,” but this means only that state law cannot nullify or obstruct federal law.

Under this system of “dual federalism,” states have no greater obligation to assist in the enforcement of federal immigration law than they do in enforcing federal drug laws. This explains why a majority of states license the sale and distribution of marijuana for medicinal or recreational purposes, even though the sale, distribution, and possession of marijuana remain illegal under federal law. In both cases, states cannot shield their residents from federal law enforcement, but they can withhold their assistance in enforcing federal law. If the federal government wants its laws enforced more stringently or consistently in particular parts of the nation, it must do the job itself.

As some blue states and municipalities designate themselves “sanctuary” jurisdictions, in which local law enforcement turns a blind eye to immigration enforcement, the Trump Administration has responded with targeted deployments of federal agents, as in Minneapolis under “Operation Metro Surge.” State and local governments do not have to cooperate with the federal government, but they cannot stand in its way either.

Minnesota Attorney General Keith Ellison objected to the deployment of ICE in Minnesota. Not content to make policy arguments against immigration enforcement, he alleged that this “invasion” of federal forces was triggering conflicts between federal agents and anti-ICE protestors, straining local resources, and disrupting local communities. Ellison also went to court, claiming the deployment was unconstitutional and violated Minnesota’s sovereignty. Ellison argues that insofar as the Trump Administration was deploying ICE and other personnel to pressure Minnesota into assisting with the enforcement of federal immigration laws, it constituted unconstitutional “commandeering” of the state and violated the Tenth Amendment.

In Minnesota v. Trump, a federal district court rejected AG Ellison’s commandeering arguments, and with good reason. While the state need not cooperate with the federal government, the federal government remains free to enforce federal law throughout the United States, including in jurisdictions that oppose the laws in question. If direct federal enforcement of immigration laws is disruptive, that is something for Minnesota policymakers to consider when deciding whether to cooperate. Direct federal enforcement of federal law is not commandeering.

The anti-commandeering principle prohibits the federal government from compelling state governments to administer or enforce federal law. So, for example, in Printz v. United States, the Supreme Court held that Congress could not require local law enforcement officers to conduct federal background checks on gun purchasers. If Congress wanted such checks performed, it could offer incentives to states to cooperate or provide for the federal government to do the job itself.  What it could not do is dictate instructions to local law enforcement.

The anti-commandeering principle prevents the federal government from ordering state and local officials around, but it does not prevent the federal government from using carrots and sticks to induce state cooperation. As the Supreme Court explained in New York v. United States, it is perfectly okay for the federal government to use its regulatory and fiscal powers to pressure states to fall into line. Accordingly, in New York, the Court noted that Congress could impose greater tax burdens and regulatory restrictions on waste producers in states that did not meet federal standards for disposal capacity. Providing incentives to cooperate is not commandeering.

Other cases, such as Garcia v. SAMTA (which upheld the application of the Fair Labor Standards Act to state and local governments), make clear that states receive no special exemption from the burdens or disruptions federal law may impose. That's how federal supremacy works. If a federal action is otherwise constitutional, it takes more than state or local displeasure to render it unconstitutional. Indeed, were it otherwise, state and local governments would have a de facto veto over efforts to enforce federal laws they object to. If specific ICE actions in Minnesota were illegal (as some alleged), it was because they violated other constitutional or legal limitations on government power, not because they transgressed federalist principles. Even in the conditional spending context, it takes more than a naked threat to withdraw a large pot of money to transform inducement to compulsion, such as the reliance interests at issue in NFIB v. Sebelius, in which the Supreme Court held Congress could not take away Medicaid funding from states that refused to participate in the Medicaid expansion.

The New York decision makes clear why Minnesota’s Attorney General Ellison’s anti-commandeering argument went nowhere in Minnesota v. Trump. The imposition of otherwise-constitutional burdens on states is a permissible way to induce state cooperation, as is the direct enforcement of federal law, even when it is not to the liking of state governments. This is precisely how “cooperative federalism” works under most federal environmental laws. States are encouraged to embrace federal priorities and agree to enforce federal pollution control laws, and are promised federal financial support for their efforts. Should states refuse, however, the federal government comes in to enforce federal environmental laws directly, often in ways that are more burdensome or disruptive than the state would like. In effect, the federal government tells the states, “if you don’t enforce our standards, we’ll do it for you, and you won’t like it.” Indeed, under the Clean Air Act, the U.S. Environmental Protection Agency enforces more stringent regulatory standards in non-cooperative states than in the rest of the country.

While the federal government can offer incentives for state cooperation, the Trump Administration does not have free rein to withhold federal funding from sanctuary jurisdictions or impose sanctions that Congress has not approved. The federal government may impose conditions on the receipt of federal funds, but those conditions must be related to the funding's purpose and — of particular relevance to the debate over immigration — states must have notice of the conditions before the funds are disbursed. Existing precedent also suggests that such conditions should be imposed or authorized by Congress and cannot be declared by executive fiat. This means the Trump Administration will have a harder time withholding federal funds from sanctuary jurisdictions than it might like, unless it gets Congress to go along.

The anti-commandeering doctrine may seem counterintuitive to some (and confusing to some government officials), but it aligns with the federalist nature of our republic. Preventing the federal government from forcing states to enforce or implement federal law reinforces political accountability by clarifying which government officials are responsible for which policy decisions. Yet, as Justice O’Connor explained in her New York v. United States opinion, if the federal government could commandeer state officials, federal officials would be insulated from political consequences for their decisions (should they prove unpopular), and the accountability of both federal and state officials would be “diminished.”

The current political conflict over immigration enforcement illustrates the wisdom of the anti-commandeering principle. Because the federal government cannot force state officials to fall into line, it is clear to the public who is responsible for which policy decisions. There is no question that the Trump Administration was responsible for Operation Metro Surge, while state and local officials in Minnesota were not. Voters can respond accordingly in both federal and state elections, and that is precisely how the system should work.

Jonathan H. Adler is the Tazewell Taylor Professor of Law and William H. Cabell Research Professor at the William & Mary Law School.