On August 31, Senior Judge Robert Payne of the U.S. District Court for the Eastern District of Virginia (E.D. Va.) issued an order preliminarily enjoining enforcement of Va. Code § 15.2-1726.1, “Immigration enforcement agreements with federal authority; required provisions”, better known as the Old Dominion’s “287(g) Law”. To preserve the status quo pending a final disposition, that order only applies to current “287(g)” agreements between state and local law-enforcement and ICE, not future ones. “Legislative overreach” is one thing; the grandees in Richmond likely pulled a muscle when they passed this one.
Section 287(g) of the INA
Such agreements are named after their enabling law, section 287(g) of the Immigration and Nationality Act (INA), which states, in pertinent part, that DHS:
may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
“May”, not shall, and as it takes two parties to come to an “agreement”, no state or locality is required by the INA to enter such a “written” one or to perform immigration functions.
ICE, which admittedly may be biased on the topic, contends that 287(g) agreements provide several benefits for state and local cops who sign up — including access to ICE resources and training — but that the biggest bonus provided by the program is that helps states and localities keep their communities “safe from potentially dangerous criminal aliens”.
That claim should be uncontestable, except for immigration advocates who vehemently contest it and argue (among other things) that “287(g) agreements often lead to immigration arrests of individuals with minor criminal histories” and “threaten community safety and hinder community policing”.
Not that the INA includes a specific “minor criminal history” exception for any alien who is otherwise removable, but with due respect to opponents, I trust state and local officials to have a better idea of what constitutes “community safety” and “community policing” in their communities than outside advocates do.
Gov. Spanberger’s EO and Directive
As of the end of December, the last full month of then-Virginia Gov. Glenn Youngkin's (R) term, ICE had signed 1,275 Memorandums of Understanding (MOUs) for 287(g) programs covering 40 states, 31 of which (by my count) were in the Commonwealth of Virginia, including the state’s Departments of Corrections, State Police, Wildlife Resources, Law Enforcement Services, and Marine Resources Commission.
There are now many more — 2,430 — 287(g) MOUs between ICE and states and localities, but notably absent from that list are those Virginia state departments.
That’s because the 10th executive order (EO) newly elected Gov. Abigail Spanberger (D) issued after taking office in early 2026 rescinded an EO her predecessor, Youngkin, had issued in late February 2025, which directed those state departments to play 287(g) ball with ICE.
Shortly thereafter, she issued Executive Directive 1, which told “the Virginia State Police, the Virginia Department of Corrections, the Virginia Department of Wildlife, and the Virginia Marine Resources Commission to terminate any and all Section 287(g) Agreements and any related memoranda of understanding or similar agreements with ICE”.
Virginia’s 287(g) Law
The 287(g) law began as two separate but essentially identical bills, both of which were introduced in the state legislature on January 22: SB 783, which was sponsored by Sen. Saddam Azlan Salim (D-Fairfax); and HB 1441, sponsored by Del. Alfonso Lopez (D-Arlington).
Spanberger signed the former on April 22, with an effective date of July 1, adding a new section 15.2-1726.1 to the Code of Virginia.
Subsection (B) therein provides that, with exceptions:
no person acting in his capacity as a law-enforcement officer shall assist, cooperate with, or use any law-enforcement resources to facilitate any operation that seeks to identify, arrest, or otherwise impose a penalty upon an individual for any violation of federal civil immigration law unless presented with a judicial warrant or judicial subpoena.
While that’s pretty compact — if not legally sensible, because as I have explained at length elsewhere, “judicial warrants” aren’t required for civil immigration arrests and there is no mechanism ICE can use to obtain one for that purpose — subsection (C) is a monster, consisting of 12 separate paragraphs that attempt to micromanage ICE operations in the commonwealth.
Take, for example, paragraph (C)(3), which states:
No law-enforcement agency shall maintain, renew, or enter into any federal immigration enforcement agreement unless such agreement includes [t]hat any federal agent operating pursuant to the federal immigration enforcement agreement shall be clearly identified as an agent of U.S. Immigration and Customs Enforcement. No such clear identification shall include wearing any uniform or displaying the word "police" on any uniform, vehicle, or equipment while conducting any immigration enforcement activity within the Commonwealth.
Or paragraph (C)(1), which requires ICE to “provide to the law-enforcement agency the names and ranks of all federal agents involved in any immigration enforcement activity within the Commonwealth at least seven days prior to engaging in such immigration enforcement activity”.
That couldn’t lead to doxxing, or delay investigations, could it?
Paragraph (C)(7) would bar ICE from requesting “information from any locality” in Virginia “regarding the immigration or citizenship status of any person unless such request is made pursuant to a valid judicial warrant or judicial subpoena”, a proviso that appears to violate information-sharing requirements in 8 U.S.C. §§ 1373 and 1644, which my colleague George Fishman analyzed at length last February.
Then, there’s paragraph (C)(5) of the 287(g) law.
It would force ICE officers to consent to be sued and prosecuted in Virginia state courts — not federal ones — for violations of the 287(g) law “or for any violation of the laws of the Commonwealth committed while acting in the performance of their official duties pursuant to such federal immigration enforcement agreement”, essentially exposing them to hostile prosecution and vexatious litigation.
Those 12 paragraphs are diktats DHS must accept if it wants 287(g) cooperation anywhere in the state and given that ICE currently has 287(g) agreements with (by my count) 21 sheriffs’ offices, the Gordonsville Department of Public Safety, and the Rappahannock, Shenandoah, Warren Regional Jail Authority, it would be required to change how immigration officers do their business in Virginia if it plans on keeping them.
DOJ Files a Complaint, and Judge Payne Enjoins
Not surprisingly, on June 11, DOJ filed a complaint in the E.D. Va., asking the court to declare the law invalid on federal law and constitutional grounds and to enjoin its enforcement by the state.
It was assigned to Judge Payne — a George H.W. Bush appointee — and after briefing and argument, he issued his Order of Preliminary Injunction on August 31.
First, the court concluded that the federal government was likely to succeed on the merits of Count III in that complaint, where DOJ argued the 287(g) law violated the “Contracts Clause”, article 10, section 10, clause 1 of the U.S. Constitution, which bars states from passing a law that “impairs the obligation of contracts”, in this case the existing 287(g) MOUs.
Specifically, he concluded the law is “a ‘substantial impairment’ of the existing contracts between the federal government and Virginia localities and is not ‘drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose’”.
Next, he found that the federal government was likely to succeed on its claim that the Virginia 287(g) law violates the doctrine of “intergovernmental immunity” and for that reason “offends the Supremacy Clause”, article VI, clause 2 of the U.S. Constitution.
Recently, I explained in congressional testimony (that one member claimed was soporific) that the Supremacy Clause stands for the proposition that federal laws override conflicting state laws in areas of strict federal responsibility (like immigration), while the “intergovernmental immunity doctrine” springs from that clause and allows the federal government to “remove all obstacles to its action within its own sphere” and “exempt its own operations from [state] influence”.
With respect to the latter principle, as the Supreme Court explained in 1990: “A state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals”, which would certainly be true of Virginia’s 287(g) law.
Judge Payne also concluded that the federal government “is likely to suffer irreparable injury, absent injunctive relief, because its valid contract rights and existing 287(g) agreements will be substantially impaired and no remedy at law exists for that impairment”, as well as because the government’s “valid laws and practices in a domain of federal authority are undermined by impermissible state regulation” imposed by the state law.
On these and other grounds, Judge Payne preliminarily enjoined Virginia’s 287(g) law as applied to existing 287(g) agreements in the commonwealth, but not to future agreements, “thereby preserving the status quo ante” pending final resolution of DOJ’s claims.
What’s Next
While the governor was likely within her authority when she forced state law enforcement agencies to terminate their 287(g) agreements, the legality of the “Virginia 287(g) law” — which purports to be binding on both local law enforcement agencies in the commonwealth and on DHS — is an entirely different issue.
Even before the court ruled, immigration officers in late August carried out a massive operation in Virginia and neighboring Maryland that netted more than 1,300 arrests, including of aliens with “convictions for sexual battery, kidnapping, driving while intoxicated, hit-and-run, identity theft, and robbery”, and “arrests for murder, attempted murder, and rape” — the sorts of offenders local cops operating under 287(g) agreements take off the streets and hand over to ICE.
For now, the 23 local law enforcement agencies in Virginia with 287(g) agreements can keep them, without ICE being forced to comply with the onerous restrictions Richmond attempted to impose on the agency. Judge Payne required the state to send copies of his order to all commonwealth attorneys, and Attorney General Jay Jones (D) complied with that requirement on September 1.
Either the supporters of Virginia’s 287(g) law were unfamiliar with clearly defined restrictions on state regulation of federal activities in its sphere (including immigration) or simply chose to ignore them in the interest of politics. Regardless, they are receiving quite the constitutional education from U.S. District Court Judge Robert Payne.