A Common-Law Privilege to Protect State and Local Courts During the Crimmigration Crisis

Abstract

This essay examines the current impasse over courthouse immigration arrests. Part I briefly describes the “crimmigration” crisis that has been ongoing for three decades, and Part II situates the courthouse-arrest issue in that context, as the latest front in the federalism battle brought on by federal efforts to coopt local criminal justice systems to serve the immigration enforcement mission. Part III examines a longstanding common-law doctrine establishing a privilege against courthouse arrests, and Part IV suggests this common-law privilege gives states and localities the authority needed to break the current impasse.

Keywords: Immigration, Crimmigration, Courthouse Arrests, Federalism