Like January 6, Minnesota Is a Test of American National Sovereignty

F air-minded people can debate many things about immigration enforcement, Donald Trump’s immigration policies, and the tactics used by Immigration and Customs Enforcement (ICE) and other law enforcement agencies. But the debate over what has been happening in Minnesota is not about any of those things. It is about whether federal law is sovereign everywhere in the country, or not. It is about whether massive resistance by states, cities, and street mobs can nullify federal law, or not. And just as was true on January 6, that question must be answered first before we proceed to more mundane questions about how our laws should be executed, or whether they should be changed by democratic means.

Protests and Pretexts

Of course, there are plenty of voices out there saying that this is about ICE tactics or training. But for the most part, these people are not good-faith actors. That, too, unites them with the January 6 protesters. There were legitimate arguments to be made about election integrity, in 2020 and more generally. Some of these were eventually incorporated into new state election laws. But the people on the Capitol steps were not there to discuss reforms. They were there to prevent Joe Biden from being certified as the winner of the election, and the rest was pretext. They had no right to obstruct that. Their obstruction simply had to be cleared away.

Some Republican lawmakers tried to use objections to the certification to talk about, say, rogue Pennsylvania court decisions or other legitimate grievances. But as I argued at the time, it was no time to discuss those things until the protesters were cleared from those steps and the process for certifying the election was completed. Either Biden won the election, or he did not. If he won it — and he did — no amount of other complaints should have been permitted to stall the process.

Similarly, it is no time to discuss ICE’s tactics, or the wisdom of Trump policies, unless and until Minnesota authorities accept the legitimacy of American immigration law, including the deportation of illegal aliens and of the agency tasked by Congress with carrying out that role. It is a matter of sovereignty when the president says that he wishes to enforce federal law, and the governor of a state or the mayor of a city says that he is not allowed to.

Democratic politicians have made plain that their goal here is to stop ICE entirely from enforcing federal law in blue states. Chuck Schumer, Tim Walz, Jacob Frey, and others within the past week either demanded that ICE leave Minnesota or that the agency be abolished and not replaced. That is the endgame; the rest is window dressing. And it’s backed up by efforts to make it impossible for the federal agency to function. Pete Buttigieg went so far as to describe blue states as having a right to be “politically noncompliant areas” where federal agents lack the power to enter and enforce the law.

Our federalist system has plenty of room for states to dissent from federal policies. They have the power to refuse to help enforce federal law, and while the federal government is permitted to use leverage to obtain their compliance, it is limited in its power to compel compliance. But outright refusal to help the straightforwardly binding laws of the country be carried out is corrosive to the federal compact.

It is a matter of sovereignty when protesters cross the line from simply making their grievances known to swarming their movements, interposing themselves in the way of enforcement, stalking agents, pulling detainees out of their hands, using laser pointers and whistles to interfere with their vision and capacity to communicate, and using their cars as obstacles and weapons against federal agents. If this can be done, then federal law as we have known it is at an end, and with it our democracy.

This is also not a debate about prosecutorial discretion. Of course, no law is enforced in every case. Governments must decide what cases to prioritize, and senior policymakers can set down general criteria for doing so. They should not, as Joe Biden did, use this as an excuse to invalidate laws wholesale. They must not, as Barack Obama did, aim to give permanent immunity to those outside their preferred criteria by enacting regulations when Congress chooses not to enact laws. But to say that more or less discretion should be applied is one thing; compelling the government to choose less enforcement by obstructing its preferred policy is illegitimate. At a certain point, it is insurrectionary.

Breaking the System

Besides undermining the law, allowing some states to declare themselves immigration-law-free-zones distorts our political system. ICE operations have gone fairly seamlessly in red states, with the result that those states will have fewer residents come the next census. Blue states are already on pace to lose ground in that census due to a net outflow of Americans; Minnesota, for example, hung on to one extra House seat and electoral vote in 2020 by a margin of only a few hundred votes and an error in tabulation, and it is currently on pace to lose that seat in 2032. If it is able to retain and attract illegally present foreigners by offering them immunity from federal law, it will spend the next decade having more representation in Congress, more say in the choice of presidents, and more federal funding of various types — all obtained at the expense of the law-abiding portions of the country.

This is entirely a one-way street. Democrats dislike our immigration laws, and lacking either the votes in Congress to change them or a colorable constitutional argument to overturn them in court, they believe that they have a right to nullify them by massive resistance. Yet, what federal laws that they like would they tolerate being nullified in the same manner by red states? If the Constitution runs in only one direction, that sooner or later will erode its foundations on the right, as they have been long since eroded on the left. If the Minnesota model of nullifying federal law is seen to be effective, it is sooner or later likely to be imitated in red states by people who object to other federal laws. The FACE Act, which bans obstructive protests at abortion clinics, is likely to be high on that list. So may federal gun and environmental laws.

Right-wingers who defied federal law in the past, from Cliven Bundy to Kim Davis, were no heroes — and by and large, most of the right let them be hung out to dry on their own. We can’t guarantee that this will always be the case.

Demolishing Norms

Left-leaning protest movements tend to playact at re-creating the civil rights movement. Of course, that was a large movement with many tactics, not all of them sanctioned by its leaders. But mainstream civil rights protesters such as Martin Luther King Jr., John Lewis, and the Southern Christian Leadership Conference typically took one of two paths: either marching with signs to raise awareness, support, and sympathy, or getting arrested by having American citizens undertake the ordinary behavior that Americans have the right to do: ride the bus, eat lunch at a restaurant, attend school, or register to vote. If you go back and look at the major civil rights protests, you will not see the protesters driving cars into the cops, dragging arrestees out of their clutches, stalking them to their homes, biting off their fingers, or trying to blind them with lights and deafen them with whistles. And you certainly won’t see them demanding that federal authority kneel to states’ rights.

Two can play at that game, and have. Opponents of black civil rights tried to thwart federal enforcement of Reconstruction; Ulysses S. Grant crushed them and prosecuted scores of Klansmen, but eventually, the country tired of the conflict, and the Klan won. The South became a politically noncompliant area on civil rights for nearly a century. It took unbending application of federal law between 1957 and 1965 to change that.

Perhaps the closest one can find in American history to a successful and morally legitimate mob veto of enforcement of a law was the Fugitive Slave Act, which was never again enforced in Massachusetts after the federal government spent $100,000, and a federal marshal was killed, enforcing the law to recapture one escaped slave in 1854. The law was scarcely enforced at all in the North after 1856. But the Fugitive Slave Act was morally objectionable in its purpose, not merely in tactics — and more to the point, the successful campaign against it helped drive the nation into a civil war that killed a million Americans. That is not an optimistic parallel. But it is where we could be headed if we lose this battle. Our Constitution is on thin ice.