The recent death of Renee Good during an ICE operation in Minneapolis, Minn., has raised the stakes in a stand-off between so-called “sanctuary” jurisdictions and the Trump administration. It’s important to note there’s a (not-so) fine line between states and localities that refuse to cooperate in immigration enforcement efforts and any efforts by elected officials in those states and localities to rile up “activist” mobs to forcibly confront federal officers carrying out their duties.
The Government’s Near Monopoly on Force
In the first line of his treatise “The Social Contract”, Jean Jacques Rousseau noted: “MAN is born free; and everywhere he is in chains.”
Rousseau was describing the relationship between individuals and their governments in 1762, when the chains he referenced weren’t as metaphorical as they are today. But our Founders, and Jefferson and Madison in particular, knew their Rousseau and his opinions guided the drafting of our foundational documents.
Neither the “author of the Declaration of Independence” nor the “father of the Constitution” is available for comment, but it’s arguable, nearly 250 years in, whether they would look at today’s Republic and find their preference for “dangerous freedom” (periculosam libertatem) over “quiet servitude” (quietam servitutem) had been respected.
That’s not to say Americans live in chains or aren’t free in any objective sense of the word. In our own “social contract”, however, we have traded untrammeled freedom to do whatever we want for a degree of acquiescence to the rules of our nation, states, and communities.
Nearly all of those “rules” — from the U.S. Constitution to federal and state laws and regulations all the way down to local ordinances (and, where applicable, homeowners’ association requirements) are commonly accepted.
It would be great if we could all just get along and do the “right thing” by one another without outside governance, but as Madison explained in Federalist 51: “If men were angels, no government would be necessary.” Men aren’t angels, and so government — and government’s rules, are necessary for order.
Rules are meaningless without an enforcement mechanism, and as the very word suggests, that means a threat of “force” to ensure compliance.
That’s true whether the rule in question comes from the Constitution or your local HOA covenant.
Paint your front door the wrong color, the local board will likely send you a letter. Ignore enough letters, the board will take you to court. Lose the case, and you’ll be ordered to paint your door. Ignore the order, and at some point, the government will make you paint your door, and if you refuse you may face fines, then a lien, and possibly eviction.
If that sounds far-fetched, assume you won’t pay your federal taxes. Again: IRS letter, court summons, court order, and then possible arrest and imprisonment — the ultimate expressions of force.
Many people are happy to regulate people’s activities, and if you disagree look no further than the restrictions many demanded and then attempted to enforce themselves — or demanded the government enforce — during our recent social experiment in pandemic management.
I’ve used the word “force” to describe the power the government uses to ensure compliance with its/our rules, but perhaps a more apt (though rhetorically loaded) term is “violence”.
Every negative interaction with our government comes with the implicit threat of violence, which is why you must “be legally authorized to possess and carry a firearm” to be an IRS special agent, for example, and why even postal inspectors carry guns.
Probably the purest example of this dynamic comes, ironically, from Minneapolis itself.
You may have seen a video of “people in black uniforms walking down the middle of the street” in what appears to be a middle-class suburb, firing projectiles and warning people to go inside their houses.
That video was mis-described as showing local cops imposing pandemic restrictions, but it actually portrays either Minneapolis police or Minnesota National Guard troops enforcing a local May 2020 curfew implemented in response to riots that broke out in the wake of George Floyd’s death.
In other words, the state used the threat of force and a degree of violence to prevent its citizens from venturing forth to potentially engage in violence, even if they wanted to walk on their front porches.
As an aside, the government’s monopoly on force cum violence is not absolute. Every American retains the right to use force as a matter of “self-defense”, though that right is defined differently depending on where you live, as is the legitimate justification for using force in any given situation. This isn’t legal advice, however, so defend yourself at the peril of possible prosecution.
“If Angels Were to Govern Men”
You’ve likely heard the earlier Madison quote before, but may not be familiar with the next two lines in Federalist 51, which get to the point our future fourth president was making:
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
In our “federal” Republic, that control flows as follows: the three branches of the U.S. government regulate the activities of one another; and with respect to “federal” issues, regulate the states.
A similar dynamic plays out at the state-government level (enabled by article IV, section 4, clause 2 of the U.S. Constitution, which requires the federal government to “guarantee to every State in this Union a Republican Form of Government”), and so on down the lines to localities, school boards, water districts, etc. and HOAs.
The Federal Government’s Occupation of the Field of Immigration
In its 2012 opinion in Arizona v. U.S., the Supreme Court explained that notwithstanding “the importance of immigration policy to the States”, “the federal power to determine immigration policy is well settled” and “the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance”, like immigration, which “the Federal Government has occupied”.
Fifty-eight years earlier, in Galvan v. Press, the Court made clear that even the federal judiciary only plays a limited role when it comes to immigration:
Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process. But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government. [Emphasis added; citations omitted.]
That’s not to say states can’t play any role in immigration, and in fact, section 287(g) of the Immigration and Nationality Act (INA) permits state and local officers to perform certain immigration enforcement functions in certain circumstances and with appropriate oversight.
But generally, immigration is a federal responsibility the states have extremely limited power to control. In fact, 8 U.S.C. § 1373 prevents states and localities from “prohibiting, or in any way restricting, any government entity or official from sending to, or receiving from” DHS “information regarding the citizenship or immigration status, lawful or unlawful, of any individual”.
Sanctuary Jurisdictions and the Anti-Commandeering Doctrine
The Center defines “sanctuary jurisdictions” as “cities, counties, and states” with:
laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE — either by refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.
To be clear, as the Supreme Court has explained, “even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts”.
This is an expression of the “anti-commandeering doctrine”, and sanctuary states and localities have argued that it bars the federal government from forcing their law enforcement officers to perform immigration-enforcement duties, and permits them to deny ICE access to their facilities (like jails and other secure locations).
Those arguments have generally been successful, and consequently, whether it’s acceptable for states and localities to, for example, shield criminal aliens from ICE enforcement has largely become a local political issue, not a federal legal one.
Given that the elected officials crafting sanctuary policies represent their local constituencies, to a degree those policies reflect the opinions of their constituents.
That said, those officials are also able, through their (uniquely amplified) public statements to shape the opinions of their constituents on sanctuary questions — even those constituents who would otherwise benefit from increased enforcement (which is nearly all of them).
This is not a recent phenomenon in U.S. history, or exclusive to immigration, but immigration is the main battlefield between the federal government and recalcitrant states today.
“A Political Culture Full of Arsonists”
It doesn’t appear that either Minnesota state authorities or local cops in Minneapolis are assisting the ongoing ICE operation in the greater Twin Cities area in any way.
In fact, DOJ in September filed suit against both polities (and the city of St. Paul, Hennepin County, Minnesota Attorney General Keith Ellison, and the Hennepin County sheriff) over their sanctuary policies.
Best to let that play out in the courts before commenting, but state and local officials in the “Land of 10,000 Lakes” have also seemingly attempted to use ICE’s increased immigration enforcement activities under Trump II for their own political purposes — and done so in inflammatory terms.
During his May commencement address at the University of Minnesota Law School, for example, Gov. Tim Walz (D) referred to ICE as “Donald Trump's modern-day Gestapo”, and claimed the agency was:
scooping folks up off the streets. They're in unmarked vans, wearing masks, being shipped off to foreign torture dungeons, no chance to mount a defense, not even a chance to kiss a loved one goodbye, just grabbed up by masked agents, shoved into those vans and disappeared. To be clear, there's no way for us to know whether they were actually criminals or not because they refused to give them a trial.
There’s a lot Walz said that doesn’t comport with the facts, but you can get the gist. In December, he suggested ICE operations in the state are “racially motivated”, and on January 6, claimed his state was “under assault like no other time in the state’s history” from the federal government.
Then, there’s Minneapolis Mayor Jacob Frey (D). In early December, he asserted that, "We have received reports about a number of scattered incidents in which federal agents were involved in some form of activity” and that “in many cases, those activities are largely built around terrorizing people”, and barred ICE from using city-owned parking facilities.
The mayor, however, saved his most incendiary remarks for the aftermath of the January 7 incident, using a press conference to tell ICE:
Get the f*** out of Minneapolis. We do not want you here. ... People are being hurt, families are being ripped apart, long-term Minneapolis residents that have contributed so greatly to our city, to our culture, to our economy are being terrorized and now somebody is dead.
Jim Geraghty used the term “A Political Culture Full of Arsonists” in National Review to describe what’s playing out in Minnesota, and it is difficult to read Walz’s and Frey’s statements and disagree.
Undoubtedly, the DHS secretary at points could also have used more measured tones during her press conference after the incident, and fighting fire with fire ends up leaving both sides burnt.
But it’s understandable, to a degree, for a superior to defend one of her officers who is faced with an onslaught of online obloquy, especially given the massive uptick in vehicle ramming incidents directed at immigration officers.
Plainly, Walz, Frey, and others (including Ellison) are not fans of immigration enforcement, and — again arguably — have the option on behalf of their jurisdictions not to cooperate in it.
Like the rest of us, however, federal law prevents them from “forcibly assaulting, resisting, opposing, impeding ... or interfering” with U.S. law enforcement officers, and to the degree that their incendiary statements are intended to encourage their constituents to do so, it should be out of political bounds.
Men aren’t angels, and neither are those who govern them. Perhaps, however, our elected officials could step out of their bullying pulpits long enough to listen to what Lincoln termed “the better angels of our nature” instead of the demons rejoicing in the political fires they are currently stoking.