States have no power to nullify federal law on a federal function, and courts have no power to dictate enforcement.
There is a hearing in Minneapolis federal court this morning regarding a lawsuit brought by Keith Ellison, the radical leftist elected by Minnesotans to be their state attorney general. The state is asking Judge Kate Menendez to halt the Trump administration’s surge of federal agents to enforce Congress’s immigration laws. Menendez, a Biden appointee, is the judge whose temporary restraining order, an attempt to usurp executive law enforcement authority, has been blocked by the Eighth Circuit (as I discussed here).
Regardless of what you think about how the administration has executed the surge in Minneapolis and other blue cities around the country — and the president’s sudden assignment of “border czar” Tom Homan to take it over signals that the White House knows it has a big public perception problem — the lawsuit is ridiculous.
In NR circles, I believe I am the leading naysayer when it comes to the Supreme Court’s transformation of immigration enforcement, over a century, from principally a state responsibility to a plenary executive power. (See, e.g., here.) But it doesn’t matter how critics assess this shift and its portents for the sovereignty of the states, which would not have ratified the Constitution absent a guarantee of significant control over who was lawfully present in their territories. The Supreme Court gets to say what the law is, and it has construed the Constitution to have delegated immigration-enforcement authority to the federal government.
As Chief Justice John Roberts put it, writing for the Court in Arizona v. United States (2012):
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. . . . This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nauralization,” U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations. . . . The federal power to determine immigration policy is well settled.
The Tenth Amendment, which is the basis for Minnesota’s lawsuit, states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The state is litigating as if the first clause of the amendment were not there and as if the Supreme Court had not spoken. Under settled federal jurisprudence, the power to make and enforce immigration law has been delegated to the government of the United States. Period. The states can no more nullify federal immigration law within their territories than nullify federal tax, firearms, environmental, and other law of which progressives approve and demand vigorous enforcement (which they unfailingly get when Democrats are in the White House).
Constitutionally speaking, if Minnesotans are upset with the Trump surge (and I am not saying they don’t have their reasons), they can urge Congress to cut off funding for it. In fact, with a potential government shutdown looming at the end of this week, that is exactly what many Democrats are agitating to do.
You can disagree with that objective. I do. Even with their excesses, defunding Immigration and Customs Enforcement and the Border Patrol would be very foolish. That we need their missions done better does not alter the fact that we need their missions done. But if Congress were to assert itself and start slashing budgets, that would be the proper, effective, and politically accountable way to curtail the president’s enforcement initiative.
A lawsuit is the wrong way.
Reportedly, Judge Menendez is wringing her hands because the state’s legal claim and the Justice Department’s response have, to her mind, put her in the position of choosing between Minnesota’s values and the federal government’s. There is no such dilemma. She is a judicial officer in a constitutional system of divided powers, in which the states have no authority to nullify federal law in connection with a federal responsibility, and the federal judiciary has jurisdiction only to address concrete harms, not dictate the future of federal immigration enforcement. No one is asking her to weigh anyone’s values.
Given the political climate after the deaths of two Americans in the last three weeks in confrontation with federal agents, Ellison’s lawsuit is being taken seriously, at least by the media. It shouldn’t be — and certainly not by the courts. On the other hand, the action in Congress is very serious and worth watching closely.