Federalism and the State Police Power: Why Immigration and Customs Enforcement Must Stay Away from State Courthouses

Abstract

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This enforcement tactic has had a chilling effect on the prosecution of domestic violence, as undocumented victims wish to avert encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the victim’s immigration status by the alleged abuser.

The direct effect of the presence of federal ICE agents at state and local courthouses extends beyond the victims. It also hampers the ability of state and municipalities to enforce their domestic violence laws. This interference, in turn, undermines state sovereignty and the exercise of the states’ police power, both of which are critical in our federalism system.

This Essay argues that the ICE initiative to detain undocumented individuals at state and local courthouses runs afoul of the constitutional limits on federal action, as made clear by United States v. Lopez and United States v. Morrison and, to a lesser extent other Tenth Amendment cases that robustly protect state police powers and that have set forth a reinvigorated sense of the state’s role in our federalism. Accordingly, under the revived notion of state sovereignty and police power in our federalism structure, ICE should be kept away from the state and local courthouses.

Keywords: Immigration, Federalism, Domestic Violence