IT’S TIME FOR STATES TO START PROSECUTING THE ICE GESTAPO
Don't take immunity for granted: it's not that simple
It’s a misconception that federal agents are impervious to state criminal law. In video after video, however, we see DHS’s lawless ICE agents rounding up immigrants with no identification and agents’ faces covered like henchmen in Russia, including in places like state courthouses. The federal agents give no regard to state laws, which surely prohibit masked men from accosting people in a state government building or rounding up residents of a state in a manner that resembles kidnapping.
The Trump Administration is suing state jurisdictions for not cooperating with immigration enforcement. Trump’s acting U.S. Attorney for New Jersey, Alina Habba, has threatened criminal prosecution of state officials. But two can play at that game.
States are independent sovereigns, with the authority to enforce state laws against anyone, including a federal agent. They cannot, however, enforce state laws in a manner inconsistent with federal laws, since under the Constitution federal law is supreme. That includes a prohibition on states enforcing generally applicable laws that would prevent a federal official from carrying out lawful duties pursuant to a federal statute. For example, a state could not prosecute an FBI agent for reckless driving where the agent was in hot pursuit of a federal suspect. States cannot enforce state criminal laws against federal agents—like wiretap laws that require two-party consent—that are inconsistent with the federal laws that authorize the federal agents’ conduct.
But a federal agent can be prosecuted by a state if he engages in conduct that is not authorized by federal law and is a crime under state law. Where that line is drawn is complicated and somewhat unclear. The benefit of the doubt is given to the federal official, lest states use state criminal law as a pretext to undermine federal enforcement. Consider the situation in the south in the 1960s, where all the institutions in the states were aligned against federal enforcement of civil rights. During prohibition, local jurisdictions sought to prosecute federal revenue agents.
Those cases involved states seeking to resist legitimate federal enforcement. None of the cases, however, involve lawless federal agents who claim an absolute right to do whatever they want, regardless of state law. Imagine if an ICE agent decided to murder a detainee. That is not so far from what we are witnessing. Masked, anonymous agents are detaining migrants in state courthouses. What if they were to march in and disrupt the court proceeding, violating clear state laws and judicial procedures? They are similarly violating numerous other state laws.
States can and should enforce these laws. It will then be up to the federal government to defend these rogue agents. States can arrest them and prosecute them. Indeed, that is contemplated in the federal removal statute, 28 U.S.C. § 1442. Recall that was the statute Trump and his associates invoked in the Georgia election interference prosecution. The process is that the state brings criminal charges and then the federal agents can seek to remove those charges to federal court under § 1442. This excellent post on JustSecurity explains the ins and outs of the removal statute. To summarize, it allows federal agents to remove a criminal case if they were (1) acting pursuant to their official authority and (2) there is a colorable federal defense for their actions. It is not hard for a federal official to get the case removed, under this test. But it is not automatic. And it involves a significant hearing in federal court, where the federal government’s actions would be subject to scrutiny in litigation.
These hearings would test whether there is a colorable federal defense to the federal agent’s actions. That is the most exacting part of the test. If it is not satisfied, the federal court could remand the matter back to the state court for criminal prosecution. Blatantly unlawful federal actions have, to date, not been the subject of removal litigation or state criminal prosecution. It has been the other way around. The removal statue exists because states sought to undermine legitimate federal enforcement by targeting federal agents with state criminal prosecutions.
But it is hard to imagine that there’s a legitimate federal defense to blatantly violate generally applicable state laws that protect courthouses, and protect state residents (including immigrants), from arbitrary arrest. Or laws that prohibit concealing one’s identity in a place like a courthouse or other public space. Even if DHS or DOJ were to issue directives to agents to violate these laws, those directives would need to be based on some legitimate federal authority. They could not authorize unconstitutional actions by agents. And they likely could not authorize agents to run roughshod over state law.
These questions are all unsettled because, heretofore, the shoe has been on the other foot. The bad guys were the states, harassing federal agents. Now the bad guys are the federal agents, harassing state residents in violation of state law and, in many cases, the Constitution and federal law.
So if states want to fight back and test their authority, they should know that the law is not so one-sided. Two can play this game.