| Earlier this week, Mae A. D’Agostino, a federal district court judge in New York, dismissed a lawsuit in United States v. New York, a case filed by the federal government to challenge the validity of New York’s Protect Our Courts Act (POCA). Whatever one thinks of the wisdom and propriety of federal enforcement activities and tactics these days (and I have problems with many of them), Judge D’Agostino’s opinion and result are constitutionally wrong-headed in many ways, and will almost certainly be reversed as it makes its way up the appellate ladder. If the U.S. Supreme Court ends up being the one to set things straight, observers from the left end of the political spectrum may be inclined to see such a result as (another) example of the Court bending over backward to enable and facilitate unlawful conduct by the current presidential administration. In reality, though, such a result would be instead an example of (yet) another district court that simply doesn’t understand constitutional first principles. | | Because the POCA dispute parallels others about which I have written (both here on Verdict and in academic commentary), I can describe the basic issues relatively briefly. In 2017, New York passed POCA, which provides that any | person . . . attending a court proceeding in which such person is a party or potential witness, or [in which] a family or household member is a party or potential witness, is privileged from civil arrest while going to, remaining at, and returning from [such proceeding] unless such civil arrest is supported by a judicial warrant. . . .
| | In other words, any person going to, attending, or returning from a court proceeding, or any family members choosing to accompany that person, cannot be civilly arrested without a judicial warrant. | | POCA was inspired by, you guessed it, civil arrests made by ICE officials at or near state courthouse facilities. ICE civil arrests, as a matter of federal law (including the U.S. Constitution) do not require judicial warrants; administrative warrants are sufficient under federal statutes and the Constitution. | | Hence the conflict between federal enforcement and state law. That is why the United States sued. And that is why one would expect the United States to win. After all, even assuming POCA is motivated by sincere and legitimate objectives—New York’s desire to ensure that people who are concerned about getting detained by ICE won’t refrain from attending important judicial proceedings—where both the state and federal governments have legitimate reasons for their actions, state laws give way to constitutionally valid, if politically contentious, federal laws and policies. As I explained in an earlier posting explaining why California’s ban on ICE’s practice of using face masks violates the Constitution, absent federal consent, a state cannot directly regulate the federal government. Period. That’s the Supremacy Clause of the U.S. Constitution. That’s Constitutional Law 101 (or, actually, at most law schools, Constitutional Law I). | | The district court judge in the POCA case botched this basic question by making two related mistakes. First, the court denied that New York was regulating federal officials or federal activities at all: “New York is not attempting to regulate federal agents, and it is not prohibiting the federal government from enforcing immigration law. Rather, it is simply defining, as a proprietor, what activities are not permissible in state-owned facilities.” | | Why is this reasoning flawed? Let me count the ways. First, it is factually erroneous. POCA, as described above, prohibits civil arrests without a judicial warrant, not simply “in state-owned facilities” (the way some, narrower, state executive orders that were also challenged might); POCA (which the U.S. lawsuit that was dismissed sought to enjoin) forbids judicial-warrantless civil arrests of anyone en route to or from a state-owned facility. Moreover, POCA does “regulate” federal agents; it may not flatly forbid federal enforcement, but it regulateswhere and how and against whom federal agents can do their job. Regulating the where and how and the who is no less problematic than regulating the whether. | | Much more fundamentally, the regulatory/property distinction the district court tried to draw is analytically erroneous. The state (and if by state we include, as we must, local government too) “owns” all public streets, sidewalks, parks, etc. located within the state’s boundaries (except for those located in federally owned enclaves), and the idea that states could regulate or ban federal arrests in all such public areas is laughable. Indeed, the district court’s reasoning means that even if Congress explicitly authorizes ICE to conduct judicial-warrantless arrests on public property within states, states could forbid that. | | In this regard, Judge D’Agostino’s reliance on the 10th Amendment/anti-commandeering doctrine (her second gaffe) reflects basic misunderstanding of that doctrine. Judge D’Agostino (inexplicably) reasoned: | Insofar as POCA . . . can be read to restrict certain federal activities in state courthouses and facilities, or to treat the federal government differently, it does so only as part of implementing New York’s permissible choice not to participate in federal civil immigration enforcement.
| | No! New York has the right “not to participate” in federal enforcement. But the right not to participate has nothing to do with the right to regulate federal officers who happen to be doing their job on property that happens to be owned by the state. Under New York v. United States and Printz v. United States (the seminal anti-commandeering cases by the Supreme Court), states are allowed under the 10th Amendment to withhold legislative and executive support or assistance to enforcement of federal policies. But nothing in the anti-commandeering cases or doctrine permits state regulation of federal officials who are enforcing federal law on their own, that is, without state personnel assisting. For that reason, the cases Judge D’Agostino cited (all of which involved withdrawal of state executive personnel) were completely beside the point. | | What Judge D’Agostino simply doesn’t understand is that the Printz right to decline participation has to do with state personnel, not state physical property. As I have explained in a forthcoming law review article: | [A] key . . . distinction undergirding the Printz framework [is] the difference between public personnel and public property. . . . [T]he [anti-]commandeering doctrine simply cannot be about state property, because such property is literally subject to commandeering in the form of eminent domain. Although we usually think of eminent domain being invoked by state and local government against private property owners, the Supreme Court has made clear that the federal government can invoke it against state and locally owned property, and that the same principles under the Fifth Amendment apply. So [states] can’t exclude the federal government [from state property] for the simple reason that the federal government could take [state property] for federal (public) use if it chose. Of course, exercise of eminent domain requires just compensation, but the commandeering issue isn’t about compensation—it’s about a full-fledged property rule (rather than a liability rule) to avoid a state being used even when it is compensated.
| | The upshot of all this is that New York cannot regulate ICE activities, even if ICE activities affect state functions, including state judicial functions, unless the federal government wants to accommodate the state. (In this regard, note that state courts actually are permissibly commandeered by federal law in many ways; they must process federal claims—whether they want to or not—if they process analogous state claims, they must use jury trials on account of the Sixth Amendment, and in certain civil cases, etc.) Of course, the history and tradition of congressional actions and inactions might suggest that the federal government has chosen to accommodate certain state interests. And particularly sensitive state-government locations may be ones whose sanctity the federal government is more likely to have chosen to respect. (In that sense, while Judge D’Agostino was flatly wrong in reasoning state-governmental location is all-important and immunizes states, location may in some instances be relevant to discerning congressional intent.) So, for example, if ICE officers were walking into state legislative sessions and interrupting state legislative business to make arrests, we might conclude that, absent a clear statement by Congress permitting such a practice, the federal government in that setting has historically chosen to abide by state limitations on arrests within state legislative arenas. (In some settings, congressional silence against a certain historical background might evince congressional assent to state regulation.) But even in such a setting, the choice is ultimately up to the federal government; on Judge D’Agostino’s untenable reasoning, the state enjoys immunity even if Congress were to explicitly reject such immunity. And that is wrong six ways to Sunday. | | Of course, the hypothetical scenario (I posit above for pedagogical purposes) involving arrests in a legislative chamber has nothing to do with the actual contours of POCA, which, as POCA is written, extend far beyond the actual state courthouses to places from which litigation parties and witnesses may be coming or going. (POCA also extends to family members of the parties and witnesses. By New York’s reasoning, POCA could have extended to the parties’ and witnesses’ friends, who might provide moral support, as well.) POCA is not written in terms that are anywhere nearly tight enough to raise a reasonable question of whether Congress in fact wants ICE to respect state wishes in this setting. That is, there doesn’t seem to be a question about whether the federal government has chosen to assent to state regulation here. (At least Judge D’Agostino did not adduce any evidence of such current federal assent.) And that—rather than any state constitutional entitlement—is the only constitutional question to ask in settings like this one. |
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