Ekow Yankah, the Associate Dean for Faculty and Research and the Thomas M. Cooley Professor of Law (left), speaks at the recent faculty panel on immigration enforcement. Panelists included (l-r) Assistant Professor of Law Paulina Arnold; Assistant Professor of Law Noah Kazis; and Evan Caminker, Dean Emeritus and the Branch Rickey Collegiate Professor of Law.
By Bob Needham
Michigan Law
The federal government’s interaction with states and municipalities can impact how immigration laws are enforced, according to a recent faculty panel discussion.
The event — “What Can Local Governments Do? Local and National Immigration Enforcement” — brought together Michigan Law professors to highlight and clarify some of the legal questions surrounding the actions of federal Immigration and Customs Enforcement (ICE) agents.
The goal of the panel was to empower students to think clearly about pressing issues of state and national importance, as well as to think of how they can shape the law and its enforcement in their future careers.
“We’re all watching the news, and we’re watching our country go through what could have been reasoned debate about how we enforce immigration,” said Associate Dean for Faculty and Research Ekow Yankah, the Thomas M. Cooley Professor of Law, who moderated the discussion. “But instead, many of us have watched with puzzlement, concern, or horror as what was supposed to be law enforcement turned into instances of, in some cases, spectacular violence and death.
“We thought one of the things that we could do is, if not solve the problem, we could remind ourselves what it’s like to have experts who can help us think through this.”
Here are three takeaways from the discussion:
—————
1. States and cities have some power to affect immigration enforcement.
“Immigration enforcement is really difficult for the federal government without the cooperation of states and localities,” Paulina Arnold, an assistant professor of law, said. She identified four specific ways that states and cities may choose to either “help or not help” federal immigration enforcement efforts:
Using the state criminal enforcement infrastructure: Arnold explained that when local police arrest someone in whom ICE may have an interest, ICE may request the person be held for 48 hours—but the arresting unit can choose to comply or not. In addition, local units can enter “287(g) agreements”—under the Immigration and Nationality Act—which deputize local officers to carry out immigration enforcement.
Sharing of information: Arnold said that state and local agencies can choose whether or not to collect information about individuals’ citizenship status and, to some extent, choose whether or not to share other state records with ICE.
Contracting with ICE or private companies on detention: Local jails can hold beds for federal detainees and be paid by the federal government. This has become a major source of jail funding in many places, Arnold said.
Allowing or restricting ICE in public buildings: Arnold said that states can restrict ICE from some areas in public buildings, requiring a judicial warrant to enter spaces that are not fully open to everyone.
2. The federal government tries to force cooperation—often unconstitutionally.
Assistant Professor Noah Kazis noted that early in the first Trump administration, the government issued an executive order denying all federal grants to municipalities classified as “sanctuary” jurisdictions—those that limit cooperation with federal immigration enforcement. However, that order was severely limited by multiple federal courts, which ruled key provisions unconstitutional.
Immediately upon President Trump’s second inauguration, he issued a similar executive order threatening to remove “federal funding for any jurisdiction that seeks to interfere with the lawful exercise of a federal law enforcement operation. It’s broader and vaguer than the first one,” Kazis said.
A coalition of cities and counties went to court over the freezing and conditioning of federal grants, and they won, Kazis said—up to a point. “The jockeying in court now is about all the little details of exactly how to write the injunction and over whether there are ways for the federal government to get out of the substantive core holding that this is something cities are entitled to do,” he said.
However, Kazis added, other state and local governments did not sue, and they are not protected. Some have changed their policies to comply with Trump’s orders. “So these efforts are having real effect, even though I think they are pretty blatantly unconstitutional,” he said.
3. Local governments probably cannot regulate how ICE operates, but they have some authority to punish individual misdeeds.
Although some localities have tried to regulate ICE—for example, by prohibiting agents from wearing masks or requiring identification to be displayed—Professor Evan Caminker said the classic constitutional law case McCulloch v. Maryland limits the ability to do this.
McCulloch held that states can’t directly regulate a national bank—creating the doctrine of intergovernmental immunity—and that will likely mean courts will ultimately rule that states may not directly regulate the ways or the places in which ICE operates, Caminker said.
However, Caminker — dean emeritus and the Branch Rickey Collegiate Professor of Law — added that states can enact causes of action against individual federal officials who violate the federal Constitution.
“So suppose there’s an argument that ICE officials are assaulting people in a way that they are not authorized to do under federal law or are doing illegal searches and seizures,” Caminker said. “There’s nothing wrong, in my view, with states saying that if you violate the federal Constitution, you can be held accountable for compensatory damages.”
Michigan Law
The federal government’s interaction with states and municipalities can impact how immigration laws are enforced, according to a recent faculty panel discussion.
The event — “What Can Local Governments Do? Local and National Immigration Enforcement” — brought together Michigan Law professors to highlight and clarify some of the legal questions surrounding the actions of federal Immigration and Customs Enforcement (ICE) agents.
The goal of the panel was to empower students to think clearly about pressing issues of state and national importance, as well as to think of how they can shape the law and its enforcement in their future careers.
“We’re all watching the news, and we’re watching our country go through what could have been reasoned debate about how we enforce immigration,” said Associate Dean for Faculty and Research Ekow Yankah, the Thomas M. Cooley Professor of Law, who moderated the discussion. “But instead, many of us have watched with puzzlement, concern, or horror as what was supposed to be law enforcement turned into instances of, in some cases, spectacular violence and death.
“We thought one of the things that we could do is, if not solve the problem, we could remind ourselves what it’s like to have experts who can help us think through this.”
Here are three takeaways from the discussion:
—————
1. States and cities have some power to affect immigration enforcement.
“Immigration enforcement is really difficult for the federal government without the cooperation of states and localities,” Paulina Arnold, an assistant professor of law, said. She identified four specific ways that states and cities may choose to either “help or not help” federal immigration enforcement efforts:
Using the state criminal enforcement infrastructure: Arnold explained that when local police arrest someone in whom ICE may have an interest, ICE may request the person be held for 48 hours—but the arresting unit can choose to comply or not. In addition, local units can enter “287(g) agreements”—under the Immigration and Nationality Act—which deputize local officers to carry out immigration enforcement.
Sharing of information: Arnold said that state and local agencies can choose whether or not to collect information about individuals’ citizenship status and, to some extent, choose whether or not to share other state records with ICE.
Contracting with ICE or private companies on detention: Local jails can hold beds for federal detainees and be paid by the federal government. This has become a major source of jail funding in many places, Arnold said.
Allowing or restricting ICE in public buildings: Arnold said that states can restrict ICE from some areas in public buildings, requiring a judicial warrant to enter spaces that are not fully open to everyone.
2. The federal government tries to force cooperation—often unconstitutionally.
Assistant Professor Noah Kazis noted that early in the first Trump administration, the government issued an executive order denying all federal grants to municipalities classified as “sanctuary” jurisdictions—those that limit cooperation with federal immigration enforcement. However, that order was severely limited by multiple federal courts, which ruled key provisions unconstitutional.
Immediately upon President Trump’s second inauguration, he issued a similar executive order threatening to remove “federal funding for any jurisdiction that seeks to interfere with the lawful exercise of a federal law enforcement operation. It’s broader and vaguer than the first one,” Kazis said.
A coalition of cities and counties went to court over the freezing and conditioning of federal grants, and they won, Kazis said—up to a point. “The jockeying in court now is about all the little details of exactly how to write the injunction and over whether there are ways for the federal government to get out of the substantive core holding that this is something cities are entitled to do,” he said.
However, Kazis added, other state and local governments did not sue, and they are not protected. Some have changed their policies to comply with Trump’s orders. “So these efforts are having real effect, even though I think they are pretty blatantly unconstitutional,” he said.
3. Local governments probably cannot regulate how ICE operates, but they have some authority to punish individual misdeeds.
Although some localities have tried to regulate ICE—for example, by prohibiting agents from wearing masks or requiring identification to be displayed—Professor Evan Caminker said the classic constitutional law case McCulloch v. Maryland limits the ability to do this.
McCulloch held that states can’t directly regulate a national bank—creating the doctrine of intergovernmental immunity—and that will likely mean courts will ultimately rule that states may not directly regulate the ways or the places in which ICE operates, Caminker said.
However, Caminker — dean emeritus and the Branch Rickey Collegiate Professor of Law — added that states can enact causes of action against individual federal officials who violate the federal Constitution.
“So suppose there’s an argument that ICE officials are assaulting people in a way that they are not authorized to do under federal law or are doing illegal searches and seizures,” Caminker said. “There’s nothing wrong, in my view, with states saying that if you violate the federal Constitution, you can be held accountable for compensatory damages.”
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