Sanctuary, Supremacy, History, and the Deep Country

Immediately after his inauguration, President Trump issued an executive order making his mass deportation plan a paramount priority for federal criminal enforcement. Yet even with a massive shift in federal agency resources away from criminal investigations and prosecutions in other areas, these resources would never be sufficient for a large-scale nationwide enforcement dragnet. Recognizing this, the Trump administration therefore demands that state and local authorities enlist in its campaign, going so far as to threaten criminal prosecution if they don’t cooperate. Not only does the administration lack the legal power to coerce this cooperation, but it seems to be willfully ignoring the long history of failed efforts to subordinate local enforcers to federal will. 

I will start by reminding readers of this historical background. I will then turn, first, to the administration’s effort to marshal federal resources, and its efforts to court the cooperation of those jurisdictions willing to assist in the deportation program. Finally, I will consider the lack of legal basis for the administration’s coercive efforts and the threat they pose to public safety.

 A Little History 

So often under Trump’s presidency, we hear a situation characterized as “unprecedented.” It would be wrong to do that here. Refusals by state or local officials to enforce laws that the federal government believes them obligated to enforce? Threats by the federal government to prosecute them for resisting or inadequately complying with federal enforcement projects? Those are actually quite precedented. Such is the story of the enforcement of the 1850 Fugitive Slave Law. In 1858, Ohio constable Barnabus Meachem tried to serve a state kidnapping warrant on a federal marshal and others who had seized John Price as a “fugitive slave.” Meachem backed down when threatened with federal obstruction sanctions. (Price ended up rescued by a gathering crowd.) And there’s more precedent from Reconstruction. In a recurring scenario, the sheriff of Cherokee County, Alabama, found himself before a military tribunal after he called out a posse to arrest a detachment of federal troops and killed one soldier. And still more precedent from Prohibition, which, among other things, saw the federal conspiracy prosecution of the mayor and police chief of Casper, Wyoming, and the Natrona County Sheriff—whose refusal to go after bootleggers may have been as much a matter of personal profit as principle. 

I’m writing a book about federal criminal enforcement from 1789 to just after the creation of the Justice Department in 1870, and about how fundamental institutional choices during that period continue to shape federal enforcement today. Here’s a preview to avoid making you wait: The federal government has always lacked the capacity to carry out large-scale enforcement projects across the nation. For those, it has had to rely on state and local authorities, usually local, for that’s largely how policing works in the United States. When the federal government has tried to run roughshod over local sensibilities, it has failed miserably. And when it has tried to prosecute local officials and others for allowing those sensibilities to trump federal policies, local juries acquit (as they did in the Casper, Wyoming, case). 

Sometimes the need to reckon with local commitments can lead to troubling results. Once federal troops were withdrawn from the former Confederacy, state and local authorities left the Reconstruction Amendments largely unenforced as federal officials—lacking the personnel or, sometimes, the inclination to do otherwise—largely acquiesced in white supremacist governance. Yet federal dependence on local authorities has largely been a source of strength, not weakness; the jurisdictional clashes mentioned above are the exception, not the rule. The federal government has largely learned its lesson since Prohibition. Every year since 2015, for example, Congress passes appropriations legislation prohibiting the Justice Department from investigating or prosecuting cases that interfere with states’ ability to implement their own medical marijuana laws. More generally, federal and local enforcers at least implicitly negotiate the terms of their interactions—negotiation that makes their enforcement operations more thoughtful and effective.

Federal enforcers’ dependence on local authorities has made the feds more accountable. Particularly in a world where judges have little oversight over exercises in prosecutorial discretion and where jury trials are rare, the need to work with the local police—while hardly a mechanism for protecting defendant rights—forces federal agencies and the federal government to attend to local viewpoints, at least those viewpoints shared by the local police.

At least since Prohibition—when states rejected President Coolidge’s claim that they had a “concurrent duty” to enforce the 18th Amendment—the federal government has relied on grants and reciprocal relationships to gain the assistance of indispensable local partners. The Trump administration would turn the clock back to coercion and failure.

Marshaling Federal Resources and the Opportunity Cost of Doing So

Criminal enforcement of immigration laws well beyond the border has been a challenge for the federal government since it first made illegal reentry a criminal offense in 1929. Immigration and Customs Enforcement (ICE) has 21,000 employees. Within it, Enforcement and Removal Operations (ERO), which handles “the arrest, detention, and removal of noncitizens,” has about 6,000 officers. For a federal enforcement agency, these are large numbers. But in a country that has 14 million people without legal status or with temporary protection from deportation, such personnel levels are extraordinarily inadequate to achieve the administration’s goals.

Having had some experience in this area, the Trump administration is well aware that ICE and ERO lack the independent capacity to achieve its goal. In one of his many Inauguration Day executive orders, “Protecting the American People Against Invasion,” President Trump sought to marshal the Department of Homeland Security’s resources to this end, requiring that immigration enforcement become the “primary mission” of ICE’s Homeland Security Investigations (HSI) division. HSI has 7,100 special agents in 220 U.S. cities and 80 overseas locations in 53 countries. Until now, its broad jurisdiction allowed it to spearhead investigations into terrorism, narcotics trafficking, child exploitation, human trafficking, illegal arms export, cybercrime, intellectual property fraud, and various financial crimes. What the executive order means for investigations into all these areas remains to be seen, as does the question of what the order will portend for HSI recruitment and retention. The order speaks vaguely of “Hiring More Agents and Officers. Subject to available appropriation.” But the second phrase may cancel out the first, as Congress focuses on budget cutting. 

The executive order also mandates the creation of “Federal Homeland Security Task Forces” that include all other federal law enforcement agencies. Yet here again, it is unclear whether the administration envisions agents from the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Secret Service, and the FBI pulled away from their work on gangs, terrorism, narcotics trafficking, child exploitation, cybercrime, health-care fraud, and the like to work on immigration matters. If they are reassigned to immigration duties, the risks and costs to the public are likely to be considerable. Massive shifts in an agency’s priorities are inevitable and can be well managed, as occurred in the FBI after the 9/11 terrorist attacks. But the FBI’s “transformation” back then was led by a director whose main job qualification wasn’t absolute fealty to the White House.

In fiscal year 2022, more than 24 percent of all federal criminal arrests were for immigration violations. The “most serious offense” for more than 26 percent of all federal district court defendants was an immigration offense. We will now see what a massive increase in immigration arrests and prosecutions will come at the expense of.

Courting State and Local Assistance

The administration also seems to recognize that even the full mobilization of the Department of Homeland Security (DHS) will be inadequate for the raids, round-ups, and deportations that it contemplates. As in Trump’s first term, the administration now courts assistance from state and local authorities. The need for their assistance is hardly unique to federal immigration enforcement. Indeed, there are very few areas of criminal enforcement in which the federal government is not extraordinarily dependent on the local knowledge and personnel of the police and other local authorities. The feds may be able to do all sorts of fancy surveillance and data mining from afar, and can put together arrest teams, but when it comes to large-scale brick-and-mortar enforcement, finding people and safely apprehending them, the police are indispensable. 

State and local authorities have always had the option of assisting the federal government, and the administration seeks to take advantage of the considerable support for its deportation plans in many parts of the country. A statutory framework has been available for some time, and the executive order seeks maximal use of that framework. The order requires the DHS secretary “to the maximum extent permitted by law, and with the consent of State or local officials as appropriate” to enter into “agreements under section 287(g) of the INA (8 U.S.C. 1357(g))” that would allow state or local officials to act with the authority and duties of immigration officers. These agreements have been around since the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and they have principally been used to identify and detain deportable arrestees or those already in local jails. The first Trump administration aggressively recruited local enforcement agencies for this program, but its yield was limited. As of December 2024, only 135 local departments have signed such agreements, mostly in Florida, North Carolina, and Texas. Entry into these agreements has largely been a matter of state and local politics. No California department has signed up, and in New York only the Rensselaer County Sheriff’s Office did so. The politics of the 2024 election may presage a new interest in these agreements in many parts of the country.

Coercing Cooperation

Presumably the Trump administration will do more recruiting, and perhaps it will increase the incentives for local departments to participate. With the federal government having broad spending powers, and cities and counties always cash strapped, federal funding has long been a tool for shaping local enforcement priorities and practices. When it comes to funding, however, the executive order seems more focused on sticks than carrots, particularly with respect to “sanctuary jurisdictions.” Those are the communities that in various ways have refused to cooperate with immigration authorities, sometimes explicitly barring their employees from assisting in any way.

The executive order charges the attorney general and the DHS secretary with doing everything legally possible to ensure that these jurisdictions “do not receive access to Federal funds.” Variants of such punitive legislation have been proposed in Congress before, and I will leave it to others to sort through the legality and effectiveness of such defunding efforts.

Instead, I want to focus on the executive order’s command that the attorney general and DHS secretary “evaluate and undertake any other lawful actions, criminal or civil, that they deem warranted based on any such jurisdiction’s practices that interfere with the enforcement of Federal law.” A clearer picture of the coercion the administration has in mind emerges from the memo that the acting deputy attorney general issued the day after Inauguration Day. 

The part about state and local actors begins with a combination of the dubious and the obvious:

The Supremacy Clause and other authorities require state and local actors to comply with the Executive Branch’s immigration initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands and requests pursuant to, for example, the President’s extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act.

The premise of this section—that the Supremacy Clause obliges state and local actors to “comply” with the administration’s “initiatives”—is false. In fact, the Supremacy Clause doesn’t even oblige those actors to carry out actual federal immigration laws, which have far more concrete legal status than “initiatives.” Back in 1842, in Prigg v. Pennsylvania, Justice Joseph Story flatly rejected the notion that states were under any obligation to enforce either the Fugitive Slave Clause or legislation passed pursuant to it. It would, Story noted, be “an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or entrusted to them by the Constitution.” More recently, Justice Antonin Scalia relied on the “anticommandeering doctrine” in Printz v. United States, which held that Congress lacked the power to require state and local law enforcers to conduct background checks on handgun purchasers. As Justice Samuel Alito put it in 2018, Congress lacks “the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.”

The Justice Department memo’s vague reference to “other authorities” doesn’t change the analysis. Indeed, unless the Trump administration can point to federal statutes imposing a duty of compliance on states, the conversation doesn’t even start. Missing from the memo is any indication that a general obligation on states to comply with “requests” (which is apparently different from an obligation to comply with “commands”) can be found in “the President’s extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act.” Moreover, even should the administration be able to identify a particular legislatively imposed obligation—as perhaps it will try with the 1798 Alien Enemies Act—the constitutionality of that obligation will be doubtful. Anticommandeering doctrine simply leaves little or no room for Congress to require state and local officials to enforce federal law.

But what if a state or local official violates a federal criminal statute? Well, then the official has committed a federal offense. The Justice Department memo requires its prosecutors to consider whether state and local failures to cooperate amount to “obstructing federal functions” in violation of the general conspiracy statute, 18 U.S.C. § 371. Since—apart from charges of “defrauding the United States,” which don’t seem relevant here—§ 371 requires a conspiracy to violate another federal criminal statute, it is unclear which statute the memo writers have in mind. The memo also requires prosecutors to consider charging violations of 8 U.S.C.  Code § 1324 (“Bringing in and harboring certain aliens”). As the U.S. Court of Appeals for the Second Circuit noted recently:

To “harbor” under § 1324, a defendant must engage in conduct that is intended both to substantially help an unlawfully present alien remain in the United States—such as by providing him with shelter, money, or other material comfort—and also is intended to help prevent the detection of the alien by the authorities.

Anyone who does any of this with the requisite state of mind can indeed be prosecuted, regardless of their official status. The memo also requires consideration of violations of 8 U.S.C. § 1373 (“Communication between government agencies and the Immigration and Naturalization Service”). That provision bars states or localities from impeding communication of immigration violations to federal immigration authorities, but it carries no criminal sanctions. And, at least according to the U.S. Court of Appeals for the Seventh Circuit, it may well be an unconstitutional violation of anticommandeering doctrine anyway.

There’s another aspect of generally applicable criminal laws: States have them too, and they can enforce them against those who break them, including federal agents. In the second half of the 19th century, federal agents who made contestable arrests regularly found themselves facing state kidnapping charges. Whether something similar will happen again remains to be seen. Of course, state arrests of federal officers would not be the end of it; federal agents so arrested can get their cases removed to federal court. Supremacy has its uses. But I would hope we are not returning to the days in which federalism fights were waged through intergovernmental prosecutions. Even if those are avoided, however, I suspect that the administration’s strained legal arguments will provide fodder for unending civil litigation. The federal government does indeed have extraordinary power over immigration policy, but it utterly lacks the power to draft state and local authorities as unwilling servants to enforce that policy.

 Our United Deep States

 In past collisions between federal and local commitments, the differences have been largely political, ideological, or moral. But when it comes to federal immigration enforcement, engagement with the views and priorities of state and local officials doesn’t just promote more thoughtful federal policies. It protects public safety. Departments don’t have officers to spare, Pulling police officers from their regular duties to help immigration authorities would come at the cost of the patrol and detective work that presumably targets local crime problems.

Moreover, the immigration enforcement they’d be pulled to do would rarely promote public safety and, indeed, could dramatically undermine it. Some deportable individuals have indeed committed heinous crimes. But most haven’t. A recent study finds that “undocumented immigrants are arrested at less than half the rate of native-born U.S. citizens for violent and drug crimes and a quarter the rate of native-born citizens for property crimes.” It’s therefore not surprising that another study suggests that “sanctuary policies, [] do not threaten public safety” What would threaten public safety in many communities is the loss of cooperation from immigrants afraid to talk to the police (a problem many departments have worried about since 9/11).

Perhaps the Trump administration’s threats to cut off funding and otherwise retaliate against sanctuary cities and other institutions that proclaim resistance to his mass deportation plans will lead them to withdraw or dial down their proclamations and rhetoric. But history has shown that the police (not uniquely) are never very good at doing what they don’t want to do.

 Trump regularly rails at the “deep state,” which apparently means everyone in the federal government who is unwilling to swear fealty to him. When it comes to any large-scale federal criminal enforcement endeavor, the deep state likely includes the 1,214,000 full-time sworn and civilian personnel in state, local, and tribal law enforcement agencies. These agencies have interests and commitments inextricably linked to the communities they serve. Indeed, police reliance on cooperation from those they serve implicates every citizen in the law enforcement project, for better or worse. I’m not sure how this deep country will respond to Trump’s plans. We will soon find out.