Federalism by Extortion Comes to Minneapolis

Photo by Chad Davis, CC BY 4.0, Wikimedia Commons

It is hard to think of a more extreme example of a federal government effort to “commandeer” state or local government action than the Department of Homeland Security’s “Operation Metro Surge” in the Twin Cities. President Trump and AG Bondi disapprove of policy decisions made by Minnesota and Minneapolis elected officials, from the way they have chosen to prosecute federal benefits fraud cases to their limitations on cooperation with immigration enforcement agencies. So in order to coerce Governor Tim Walz or Mayor Jacob Frey to comply with its preferred policies, the Trump administration has deployed thousands of ICE and CBP agents to terrorize the people who voted for them (and who largely did not vote for Trump). On this reading, Minnesota’s lawsuit alleging, among other things, that Operation Metro Surge violates the Tenth Amendment’s prohibition on commandeering should be a slam dunk for the state.

So why did Judge Katherine Menendez (a Biden appointee) deny the state’s request for a preliminary injunction kicking ICE out of its borders? As DHS has conducted its deadly operations in Minnesota, I’ve been continuing to think about the Trump 2.0 phenomenon that in a previous blog post I described as “federalism by extortion”: its preference to conduct its intergovernmental relations using threats of extraordinary punishments. Understanding the novelty of the Trump administration’s assault on state and local governments reveals some important limits of established federalism doctrine, making the prospects for judicial relief in these circumstances look more fleeting than one might have assumed. 

Judge Mendendez’s January 31 opinion is a case in point. To start, she expressed some doubt that Operation Metro Surge falls within the scope of the Tenth Amendment’s anticommandeering doctrine at all. As she points out, all of the cases in which the Supreme Court has upheld this doctrine involve states’ challenges to acts of Congress. According to the Court, these statutes—as Justice Scalia wrote of the Brady Handgun Violence Prevention Act in Printz v. United States—improperly sought to “direct” state officials “to participate … in the administration of a federally enacted regulatory scheme.” Operation Metro Surge, of course, is not an act of Congress, but (ostensibly) a law enforcement action by an Executive Branch agency.

Judge Menendez did not go so far as to endorse the view that this prohibition on commandeering exempts the Executive Branch entirely. But she did conclude that applying this doctrine to an operation by a federal law enforcement agency would be “unprecedented,” and declined to extend the law in this way at the preliminary injunction stage. She also articulated various other concerns with the prospect of a judge enjoining law enforcement actions: from the worry that this might exceed her equitable authority or the state’s standing under United States v. Texas, to the possibility that scrutiny over agencies’ motivation might “venture into a uniquely controversial political question.”

A “surge” of armed federal agents might seem on its face to be far more coercive than anything at stake in the Supreme Court’s anticommandeering and related case law. Chief Justice Roberts in NFIB v. Sebelius described the Affordable Care Act’s Medicaid expansion as a “gun to the head,” but try telling that to Renee Good, Julio Sosa Celis, or Alex Pretti. But it is not obviously clear—at least not obviously enough to secure preliminary relief that could put an end to the operation—that this kind of law enforcement action falls within the scope of constitutional doctrine designed to protect states from federal coercion.

Even assuming that the anticommandeering doctrine does ultimately cover this kind of federal government behavior, this case reveals a further difficulty in applying established federalism paradigms to the Trump administration’s exercise of federal power. Although I might not be as hesitant as Judge Menendez to credit DHS’s argument that its goal was simply to enforce the law, there is an important sense in which Operation Metro Surge is also not really an attempt to commandeer state and local cooperation with immigration enforcement. Of course, this is straightforwardly what Trump administration officials such as Pam Bondi or Tom Homan have said in public. But it is hard to take seriously the notion that Governor Walz or Mayor Frey could have avoided this operation, or could even end it now, by agreeing to assist ICE. In fact, despite the administration’s characterization of Minnesota as a “sanctuary” jurisdiction, the state already has a law requiring officials to notify ICE when noncitizens with felony convictions are released, and plenty of Minnesota counties voluntarily hold noncitizens in custody at ICE’s request.

In my view, the Trump administration did not choose Minnesota or Minneapolis as a target because it wanted to “commandeer” their participation in the federal immigration enforcement scheme. Rather, it wanted to punish them not only for their pre-existing immigration policy choices, but also for unrelated political reasons: for example, because the state’s governor was Kamala Harris’s running mate, or because the city is home to a large population of Somali Americans and was the site of George Floyd’s murder. As President Trump helpfully clarified, Operation Metro Surge was meant as a “DAY OF RECKONING & RETRIBUTION” for members of a political community cast as the administration’s political enemies.

Federalism by extortion is a flexible and opportunistic mode of governance. Clearly, the administration is happy to see some local governments—such as Louisville, Baltimore, or Memphis—cave to its pressure tactics and cooperate with its aims. But practitioners of federalism by extortion do not simply target jurisdictions they believe might be unable to refuse their offers. They also go after places they expect to refuse those offers, since this provides an opportunity to demonstrate the administration’s resolve to dole out punishment. By pursuing either of these two aims (i.e. seeking concessions or publicly imposing punishments), the administration also works towards a third, which is to change the cost-benefit calculus for jurisdictions that are not direct targets. All state and local government leaders now have to account for the possibility that they might be next, and weigh the risk of punishment against the rewards of compliance.

None of this is to say that constitutional federalism protections should not apply to something like Operation Metro Surge. Courts could very well take at face value Bondi and Homan’s surface-level attempts to compel immigration cooperation using the threat of an ICE invasion. Judge Menendez certainly left herself room to conclude that this is unconstitutional commandeering—though only at a later date, after DHS may have already ended the operation of its own accord.

The point is that existing doctrine may not be up to the task of restraining the Trump administration’s federalism by extortion. This doctrine may have worked given the assumption of a federal government that is interested in building a coherent regulatory program, setting the terms on which it can seek states’ participation. A world in which federal power seeks to subjugate state and local governments as political enemies requires a new constitutional theory of federalism—if this is a world where constitutional constraints apply at all.

Cross-posted at Dorf on Law

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A Labor-Based Response to ICE’s Worksite Raids

U.S. Immigration and Customs Enforcement, Public domain, via Wikimedia Commons

Workplace raids have become an important part of the Trump administration’s mass deportations agenda. The recent ICE raid at a Hyundai facility in Georgia made headlines not only because of its near-unprecedented scale—nearly 500 Korean workers were arrested—but also because of its unusual targeting of visa holders hailing from a key U.S. ally. But ICE enforcement at the places where immigrants work has been routine over the past year, since the government stopped following a Biden-era policy against the practice. Federal agents have in some instances opted for indiscriminate arrests in places where they think undocumented immigrants tend to gather, such as Home Depot parking lots and other meeting places for day laborers. Workplace raids offer a potentially more targeted tool to identify immigrants without legal status, since ICE can seek to verify work authorization information collected by employers.

In this enforcement context, some immigrant workers have begun taking action to protect themselves. Last month, dairy workers in Wisconsin went on strike to oppose their employer’s enrollment in E-Verify—a federal database that double-checks employees’ work authorization, which several workers feared would put them out of a job. The largely Latino workforce of a packaging plant in Chicago similarly organized a strike to demand, among other things, that their bosses refuse to allow ICE onto the premises without a warrant. These efforts suggest that collective bargaining may provide workers with a way to resist the mass deportation campaign.

The law is less hostile to these demands by immigrant workers—even undocumented workers—than one might think. To be sure, federal immigration law prohibits employers from hiring employees without work authorization, including most undocumented immigrants. But when immigrants are employed despite this prohibition, they are still entitled to virtually all the protections of federal and state labor and employment law. Even though the Supreme Court has held that undocumented workers cannot receive backpay remedies for unfair labor practices, they can still seek other remedies under the National Labor Relations Act. As an example, the National Labor Relations Board, in a 2018 case called Ruprecht Co., found an employer’s unilateral decision to enroll in E-Verify while union negotiations were pending to be an unfair labor practice, ordering the employer to withdraw from the program.

At the same time, immigrant workers face some important hurdles in demanding that their employers protect them from ICE enforcement. Notably, the NLRA does not apply to agricultural workers or independent contractors, which together account for many of the most common occupations of undocumented immigrants. But even for unionized workers covered by the NLRA, the Trump administration—aided by the Supreme Court’s emergency docket—has crippled the government’s ability to enforce federal labor law, firing multiple members of the NLRB and thereby depriving it of a quorum. Both the non-unionized dairy farm workers in Wisconsin and the unionized packaging workers in Chicago may find it challenging to enforce their rights against intransigent employers.

State law may be able to fill in the gaps in immigrant labor protections created by both the exclusions in federal labor law as written and the dismantling of federal labor law in practice. Some states have already taken steps to shield immigrants from workplace enforcement. Illinois, for example, recently enacted a law forbidding employers from using E-Verify to fire or conduct immigration checks on current employees. A 2018 California law went even further, declaring it a civil offense for an employer to provide voluntary consent for immigration enforcement agents to enter nonpublic workplace areas without a warrant. These direct state regulations of employers provide rights to immigrant workers who—whether because their union organizing is not protected by labor law, or because they have not successfully won a union contract—have not secured these rights through their own collective bargaining.

Framing these kinds of state regulations as protections for collective bargaining may also open up new legal possibilities. As labor law scholars including Gali Racabi and Alvin Velazquez have argued, a moribund national labor regime under the NLRA may free state labor protections from federal preemption. Some state law already fills gaps created by the federal statute—Wisconsin law, for example, grants a right to unionize free of agricultural or any other sector-specific exemptions. States seeking to insulate their immigrant residents from workplace enforcement might consider using state labor law to codify the NLRB’s approach in treating employers’ unilateral enrollment in E-Verify or other cooperation with ICE operations during union negotiations as unfair labor practices. This labor-based approach would only apply to workers actively seeking to form unions and bargain with their employers. But combined with expanded access to union rights in general, these immigration-specific protections could help ensure that employers cannot use federal enforcement to disrupt the collective bargaining process.

Labor law may also compensate for the legal deficiencies of other methods states have used to protect immigrant workers form ICE enforcement. Soon after California enacted its 2018 law barring employers from consenting to warrantless raids, the first Trump administration sued. Federal courts granted the government’s request to enjoin the law, finding that it violated the intergovernmental immunity doctrine. Even though the law on its face only regulated private employers, courts treated it as impermissible discrimination against private actors who choose to interact with the Department of Homeland Security. State labor regulations might avoid the intergovernmental immunity issue by defining the unfair labor practice more broadly, covering any unilateral choice by employers to grant state or federal law enforcement access to nonpublic workspaces. The labor-based approach also operates on a different premise. Rather than simply penalizing employers for allowing ICE to enter their workplaces in all circumstances, this approach would instead make immigration enforcement a required subject of union negotiations. These laws would not make the choice to interact with ICE per se unlawful, as long as this choice is made with workers’ input.

Lawmakers in many states have expressed concern about the impact of aggressive ICE enforcement on immigrants seeking to earn a living, as well as on the industries and communities in which they work. Meanwhile, immigrant workers have begun to advocate for themselves by demanding that their employers refrain from voluntary cooperation with ICE. As federal immigration enforcement ramps up while federal labor enforcement winds down, states have an opportunity to devise new labor law tools to protect and empower immigrants at work.

Continue ReadingA Labor-Based Response to ICE’s Worksite Raids