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The frightening implications of a federal court’s latest immigration opinion

The opinion is a subtle attack on the rule of law.

President Donald Trump speaking from behind a podium in the White House Rose Garden.
President Donald Trump speaks about immigration in the Rose Garden of the White House on May 16, 2019, in Washington, DC. 
Alex Wong/Getty Images

A federal appeals court handed down a decision on Wednesday that upholds a small part of the Trump administration’s efforts to crack down on undocumented immigrants.

The United States Court of Appeals for the Second Circuit’s decision in New York v. Barr is an outlier within the judiciary — three other federal appeals courts struck down the specific Trump administration effort at issue in New York — and there is at least one aspect of the court’s opinion that is shocking. Taken seriously, the opinion could permit the federal government to conscript every cop, prison guard, and prosecutor in the country into a massive deportation squad.

Of course, the question of whether the Supreme Court will ultimately embrace this outlier view is quite uncertain. But the current Court has been unusually sympathetic to Trump’s immigration policies, so there is at least some risk that the outlier view will prevail.

The New York opinion was authored by Judge Reena Raggi, a George W. Bush appointee. It was joined by Judges Ralph Winter, a Reagan appointee, and José A. Cabranes, a conservative Clinton appointee.

The case primarily deals with the Edward Byrne Memorial Justice Assistance Grant Program, a federal program that helps fund state and local efforts to fight crime. The Trump administration required recipients of these grants to take several steps to help the administration identify and deport undocumented immigrants. Among other things, it wants grant recipients to inform the administration when certain non-immigrants are released from state prisons, and it wants federal immigration officials to be allowed to meet with incarcerated immigrants.

As a constitutional matter, Congress has broad authority to impose conditions on federal grants. The bulk of the New York opinion discusses whether any existing federal law gives the attorney general the power to impose these particular conditions on Byrne Grant recipients. It concludes that the attorney general does, indeed, have this authority.

That decision is debatable — again, three federal appeals courts reached different results — but the stakes surrounding this question are fairly low. As Judge Raggi’s opinion points out, the amount of money at stake here represents “less than 0.1% of [New York’s] annual $152.3 billion budget” and “less than 0.1% of [Massachusetts’] annual $38.92 billion budget.” So either state can afford to simply forgo the grant money if it does not want to help the Trump administration deport more immigrants.

But Raggi’s opinion also includes a short section that would fundamentally rewrite the balance of power between the federal government and the states, at least when immigration policy is involved. That’s the section that could enable the federal government to conscript millions of state and local employees into a deportation army.

The anti-commandeering doctrine, briefly explained

The 10th Amendment to the Constitution provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Judge Raggi’s opinion suggests that there is an immigration exception to this amendment.

For several decades, the Supreme Court has held that the 10th Amendment implicitly prohibits the federal government from commanding a state to take an action the state does not want to take. As the Court explained in Murphy v. NCAA (2018), the Constitution only gives the federal government a laundry list of specific powers, and “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”

This rule, that the federal government may not give orders directly to the states or to state employees, is known as the “anti-commandeering” doctrine. As a practical matter, it is not an especially rigid limit on federal power. If the federal government wants to enforce a particular policy, it is free to spend its own money or send its own officials to enforce that policy. As discussed above, the federal government may also offer to pay states for their assistance.

But if a state adamantly refuses to help the federal government achieve a particular goal, federal officials cannot make the state do something it does not want to do. The federal government cannot, for example, order state officials to cooperate with federal immigration enforcement. Nor can it require states to allow federal law enforcement into state-run facilities.

Judge Raggi’s suggests that the anti-commandeering doctrine does not apply to immigration

Judge Raggi’s New York opinion, however, suggests that this anti-commandeering doctrine does not apply at all to matters of immigration policy. Recall that the 10th Amendment provides that certain powers are “reserved to the states.” Raggi argues that “a commandeering challenge to a federal statute depends on there being pertinent authority ‘reserved to the States.’” But, “in the immigration context ... it is the federal government that holds ‘broad,’ and ‘preeminent’ power.”

Raggi suggests that, because the Constitution gives Congress the power to set the nation’s immigration policy, it also must have the power to command states to enforce that policy.

But this argument fundamentally misunderstands the anti-commandeering doctrine. Though it is true that the power to set immigration policy is not “reserved to the states,” states do have the power to control their own police forces, to operate their own prisons, and to decide under what conditions state prisoners will be released from those prisons.

New York is not simply a case about a disagreement between the federal government and several states regarding immigration policy. It is a case where the federal government’s legitimate authority to set national immigration policy conflicts with the states’ equally legitimate power to manage their own law enforcement agencies in the way they deem fit.

And the Supreme Court’s anti-commandeering cases already tell us what happens when such a conflict arises: The federal government may set a national immigration policy, but it cannot order the states to enforce that policy.

It’s worth noting that the portion of Raggi’s opinion which laid out her idiosyncratic theory of the 10th Amendment was a bit of a non sequitur from the rest of the opinion — what lawyers refer to as “dicta.” As a practical matter, that means that lower courts should not be bound by Raggi’s unusual analysis.

The Supreme Court’s conservative members, moreover, have typically been protective of the anti-commandeering doctrine. Raggi’s opinion offers them a creative way to work around that doctrine, but not an especially convincing one. So it’s probably more likely than not that at least one of the five conservative justices would reject Raggi’s approach.

But if the courts were to embrace Raggi’s reasoning, the consequences would be enormous.

One of the most significant constraints on President Trump’s power to crack down on immigrants is the fact that he has only so many resources at his disposal. In 2016, the federal government employed about 132,000 full-time law enforcement officers, and fewer than half of these officers work in immigration or border enforcement. By contrast, there are nearly 700,000 sworn law enforcement officers working throughout the United States. If the anti-commandeering doctrine isn’t an obstacle, the federal government could potentially order every single one of these officers to target immigrants.

Just as significantly, Raggi’s opinion raises serious concerns about whether the law applies equally to liberals and conservatives alike. As Justice Antonin Scalia once wrote, “when, in writing for the majority of the Court, I adopt a general rule, and say, ‘This is the basis of our decision,’ I not only constrain lower courts, I constrain myself as well.”

One of the most important limits on judicial power is that judges typically must paint with broad brushes. Appellate judges, in particular, hand down general legal rules which should apply equally to all similar cases. When the Supreme Court says that the federal government cannot give orders to state officials, it announces a broad rule that should apply to all cases where the federal government tries to order around state employees.

Raggi’s opinion, however, seems to create a carve-out to an important legal doctrine for the one area of policy that most concerns a Republican president. That’s a dangerous precedent in its own right. If courts can create these kinds of exceptions on the fly, they can create even more exceptions in the future. Or they can create exceptions to their own exceptions if a Democratic president pushes an immigration policy that’s opposed by red states.

In that world, the rule of law is likely to become a casualty.