ICE, Minneapolis and the Rule of Law

Local officials encourage obstruction of federal agents and have now filed a meritless lawsuit

By George J. Terwilliger III. Mr. Terwilliger is a Washington lawyer. He served as deputy U.S. attorney general, 1991-93. Excerpts:

"Neither the Constitution nor any statute provides cities and states any authority over immigration matters, rendering sanctuary-city policies legally feckless. They exist only because some officials are willing to exploit the presence of illegal aliens for political gain."

"the Constitution’s Supremacy Clause (Article VI, Clause 2) forecloses Mr. Frey and his fellow exploiters from directing how ICE and any other federal enforcement officials perform their duties. Chief Justice John Marshall ruled in McCulloch v. Maryland (1819) that “the states have no power . . . to retard, impede, burden, or in any manner control, the operations . . . vested in the general government.”"

"That the ICE agents were lawfully present in Minneapolis and entitled to carry out their lawful functions without local interference doesn’t justify the agent’s use of deadly force. An investigation to assess whether the use of deadly force was legally justified is necessary. The FBI has a role under law. But by excluding the locals, the FBI has now occasioned the public to question who should be doing that investigation.

A homicide occurred within the state authorities’ jurisdiction. That gives those authorities a vital interest in the investigation. If the agent’s conduct was part of or related to his official duties, then he would be immune under the Supremacy Clause from state prosecution. If he acted outside those duties, he could lose that protection and be subject to state jurisdiction. In either case, constitutional standards for use of deadly force by a law enforcement officer will be the measure of his actions."

"Just as the federal agents’ lawful presence in the cities isn’t a justification for the use of unnecessary force, objection to their presence on policy grounds provides no justification for civilian interference in their operations, or for local officials to leave them bereft of local law-enforcement help when that occurs."