Earlier this month, two men in street clothes rapidly approached defense attorney Mark Wester and his client in the hallway of the Marlborough District Court. After confirming the defendant’s identity, they flashed their Immigration and Customs Enforcement badges and told Wester that they had come to Marlborough, a town in central Massachusetts, to arrest his client.
“He’s in the middle of a trial,” Wester said. “Can you guys wait? He does have a case here.”
“Not today he doesn’t,” one of the men said as he prepared his handcuffs. “We’re taking him in.”
The ICE agent looked up at the attorney as he cuffed his client.
“Is that okay?”
Wester stared back. “No,” he said. “It is not okay.”
ICE is, historically speaking, not okay. Its controversial, sixteen-year history of enforcing non-criminal immigration violations is filled with stories any American of conscience should find troubling. The agency has been responsible for warrantless arrests, prolonged detentions in miserable conditions, and traumatic family separations—all carried out, especially in recent years, with little mercy or accountability. As the 2020 election approaches, public opinion has turned so harshly against ICE that a plurality of Democratic voters now support abolishing it entirely.
Immigration authorities were abducting non-citizens from courthouse steps well before Trump took office. But arrests like the one in Marlborough have become such a core component of Trump’s mass deportation campaign that it’s now a serious problem for state law enforcement. The Immigrant Defense Project estimates that ICE arrests inside New York state courthouses increased by at least 1,700 percent between 2016 and 2018. Similar spikes have been reported around the U.S., especially in “sanctuary” jurisdictions that have asserted their sovereignty to safeguard the integrity of their local justice systems.
Federal immigration authorities are sending a message when they raid state courthouses, and it is not a friendly one. This practice is a painful affront to victims and witnesses who come to our courts seeking justice, and a statement of smirking disrespect to the local police, prosecutors, and judges who are sworn to administer it. ICE’s courthouse arrests also badly complicate the lives and futures of non-citizens. Even minor, unresolved misdemeanor charges can render individual immigrants permanently ineligible for visas to return to the U.S., while even the faintest rumor of ICE enforcement can cause ripples of fear and panic to spread throughout their communities.
ICE’s dramatic intrusion into the business of the Marlborough District Court came within days of the filing of an unprecedented joint legal action against the agency by prosecutors from two of the state’s largest counties, together with public defenders at the Massachusetts Committee for Public Counsel Services. These courtroom opponents joined forces against the federal government to allege that the dramatic rise in courthouse arrests carried out under Trump had “paralyzed the effective administration of justice” throughout greater Boston and beyond. They contend, correctly, that federal interference with state criminal matters is a violation of the Tenth Amendment and the state sovereignty of the Commonwealth of Massachusetts.
This historic lawsuit was announced days after Massachusetts federal prosecutors criminally indicted a sitting state judge simply for keeping order in her own courthouse. The case involves Judge Shelley Joseph, who acted completely within her authority after prosecutors dropped a pending charge against a defendant in state custody. Joseph had been notified ICE was on site to arrest this defendant so, after confirming dismissal of the charge, she instructed a court officer to escort the defendant downstairs to the lockup so he could meet with his attorney and be processed for release. Joseph’s routine order has almost certainly already cost her a judgeship; her law license and possibly even her freedom are now also on the line. (One important point, which has been overlooked in the media frenzy surrounding this indictment: If ICE agents had followed their own internal guidelines—specifically designed to minimize public disturbance in the course of arrests—they could have almost certainly apprehended the defendant outside the courthouse rather than in the lobby.)
The charges against Judge Joseph are shamelessly political, completely unprecedented in American legal history, and the implications should be of grave concern to everyone. Yet the law-and-order-loving pundits on conservative media celebrated the charges, and #MAGA Twitter exploded with calls for Joseph’s execution.
A student of American political science transported from, say, 20 years ago might fairly wonder why the “small government conservatives” and defenders of “states’ rights” traditionally associated with the modern Republican Party have not rushed to the defense of Judge Joseph and local law enforcement in the face of plain federal overreach. That not a single prominent Republican has done so is more proof that the party of Trump is not just morally unmoored, but also philosophically adrift.
In Printz v. U.S., the Supreme Court examined a very different allegation of federal overreach. The case was brought by local sheriffs who opposed the Brady Handgun Violence Prevention Act’s requirement that they perform background checks on firearm purchases. Justice Scalia’s 1997 opinion striking the background check provision drew heavily from the Federalist Papers and the Tenth Amendment. The federal government, Scalia held, had no lawful right to force local authorities to do anything in its service and such commands are “fundamentally incompatible with our constitutional system of dual sovereignty.”
To review: Forcing local law enforcement to perform a brief background check before allowing someone within their jurisdiction to take possession of a gun is an egregious violation of dual sovereignty. But today, under Trump’s immigration enforcement policy, requiring the same officers to participate in the warrantless arrest and costly detention of non-citizens apparently is not.
There is no guiding political philosophy here, and the country should by now be well beyond any pretense that there might be one. Today’s “small government” conservatives still warn against the tyranny of federal “jackboots,” but have no problem seeing them deployed to the necks of nonwhite immigrants.
Our time-traveling poli-sci student might fairly believe the nation has crossed into an alternate political universe in which Gadsden-flag-waving “conservatives” are defending Big Government’s right to interfere with local law enforcement, while liberals (and even some leftists) stand with local cops and prosecutors in defense of their right to investigate and prosecute non-citizens. But this is actually nothing new. “States’ rights,” “state sovereignty,” and the Tenth Amendment have historically been most popular with those opposing civil liberties. They have been tools of convenience in the defense of racial segregation, abortion restrictions, and denial of full marriage equality for same-sex couples. It has never been more apparent that their utility to the nativist right ends where true liberation begins.