Mayor Jacob Frey: A Tale of Two Tweets

Yesterday, Jacob Frey, the mayor of Minneapolis, tweeted this:

That first line — “I also made it clear that Minneapolis does not and will not enforce federal immigration laws” — has provoked some strong responses from people who are in favor of the strict enforcement of federal immigration law. Among them was President Trump, who wrote on TruthSocial this morning that Frey’s “statement is a very serious violation of the Law.”

That is not true. While the City of Minneapolis can help to enforce federal law if it so wishes, it is not constitutionally obliged to. This principle dates back to an 1842 case, Prigg v. Pennsylvania, and was affirmed by the Supreme Court in 1997, in a case called Printz v. United States. At stake in Printz was a provision within the 1993 Brady Handgun Violence Prevention Act that required the states to take an active — and mandatory role — in the enforcement of a federal gun-control law. Writing for the majority, Justice Scalia concluded that the statute’s attempt to commandeer non-federal agents — in this case sheriffs — was illegal under the Tenth Amendment. When Frey vows that “Minneapolis does not and will not enforce federal immigration laws,” he is thus on solid ground.

But, of course, the story does not end there. The holding in Printz is that that the states (and localities) cannot be obliged to enforce federal law themselves. It is not that federal government cannot enforce federal law — and it is certainly not that the states can interfere with the federal government when it attempts to do so. In effect, Printz gave the states a choice: Either they could help the federal government enforce federal law, or they could accept that the federal government was going to do it on its own. That same choice is before Minnesota right now: 1) Help us, or 2) get out of the way. There is no third option — at least, there is no third option that does not veer into nullification. This is not an instance in which the executive is claiming powers that have not been delegated by Congress. Nor is it an instance in which the federal government is usurping powers that have been reserved to the states. Immigration law is an intrinsically federal question, and the laws being enforced here were duly passed by the legislature many years ago. There is no pending litigation in relation to them, and the Supreme Court’s governing precedents are not vague. Unequivocally, the federal government has the authority to enforce this federal law.

Which brings me to another tweet by Jacob Frey, this one from a couple of weeks ago (and now pinned to the top of his profile):

Oh dear. This is why, on yesterday’s Editors, I suggested that we cannot have a meaningful conversation about what is happening in Minnesota unless we begin by accepting that the state’s anti-ICE activists — many of whom serve within the state’s government — are acting in bad faith. Ineluctably, every subsidiary objection of theirs leads back to the foundational claim that the federal government should not be enforcing federal immigration law in Minnesota. Sometimes, the smaller objections to the federal government’s behavior are defensible. But the ubiquitous ergo — which is currently being advanced in court by the state’s attorney general, Keith Ellison — is absolutely not. Under our system of government, Minnesota has no more right to demand that ICE get out of Minnesota than President Trump has to demand that Minnesota enforce federal immigration law. The two sovereignties in question are discrete. If we lose sight of that, we lose sight of our entire constitutional structure.