June 15, 2020

Last week was another bad one for the Trump Administration’s untethered immigration enforcement policies. As we previously reported, last month, the Seventh Circuit Court of Appeals delivered a stinging rebuke to the Administration’s efforts to bully state and local law enforcement by withholding Byrne Justice Administration Grants to sanctuary jurisdictions, one of several circuit courts to find that the tactic, undertaken pursuant to an Executive Order by President Trump, violated the separation of powers doctrine.

On Wednesday, Judge Jed Rakoff of the Southern District of New York found another Executive Order, and policies by ICE pursuant to it, violated common law privileges that go back to US legal tradition as far as its eighteenth-century English antecedents.  The opinion came in a case brought by the State of New York and the Brooklyn DA challenging an ICE policy adopted at the beginning of the Trump Administration encouraging ICE agents to enter state courthouses to arrest persons suspected of being out of legal status.  As the opinion noted, the number of immigration arrests at New York state courthouses went from 20 in 2015 to 173 in 2019, and ICE did not contest that it took the Executive Order as its authorization to pursue the policy of making courthouse arrests.  

Judge Rakoff held for the state officials on both counts of the complaint.  Citing an English case from 1782, and US counterpart cases from the early years of the Republic, Rakoff noted that there is a well-established common law privilege against arrest for people appearing in a courthouse.  He wrote that the threat of arrest deterred people in the immigrant community (both the documented and undocumented) from appearing in cases of domestic violence, family court actions, as victims and witnesses in criminal cases, and to defend themselves against criminal charges when there was a meritorious defense.  Because the arrests disrupted proceedings, the federal policy also impacted the orderly functioning of state courts, Rakoff found. He also ruled against the federal government on the second count of the complaint finding that the ICE policy was arbitrary and capricious, and therefore, that its adoption violated the Administrative Procedure Act. He ordered the practice halted.

This should come as good news to the immigrant community, to the New York state courts, and to state judges around the country who have been threatened by ICE actions in their own courthouses. In fact, Judge Shelly Joseph of Massachusetts was indicted and is awaiting trial in connection with actions she took to thwart ICE execution of a warrant in her courtroom.

Here at SALPAL we applaud Judge Rakoff but have a couple of small quibbles. First, the judge’s order does not seem to offer nationwide relief, seeming to extend only to the New York state courts. Clarification would be welcomed.

We also want to offer an additional theory for relief (and have not read the briefing in the case, so do not know if plaintiffs offered it). We do this just in case this is not the last stop for this litigation, which seems like a pretty safe bet unless ICE just plans to ignore Judge Rakoff’s order.  In 2018, the Supreme Court in Murphy v. NCAA offered a fairly expansive interpretation of the anti-commandeering rule under the Tenth Amendment—which reserves powers to the states. The High Court said that the federal government could not commandeer the state legislative process by requiring a state to legislate in a particular way—in that case, prohibiting the state of New Jersey from legalizing sports betting. If Congress wanted to outlaw sports betting, the Court found, it needed to do so affirmatively-by legislating using its Article I powers—to “pre-empt” state rules. If the federal government cannot interfere with the core state legislative function, then surely its Executive Branch cannot set up the state courts as a snare to entrap the unwilling and innocent who are subject to compulsory process when they fulfill their legal duty to appear in the court. That commandeers the mechanism of the state courts, and the efficient and fair function of its own courts certainly is a core function of state sovereignty.   

Judge Rakoff’s decision is a welcome recognition that his state judicial colleagues get to run their own courthouses.  Now we need to see if the Administration and ICE will agree to play by those rules. 

Disclaimer: The views expressed above are the author’s own and do not reflect those of SALPAL or Georgetown University.