Minnesota’s Compelling 10th Amendment Case Against Trump’s ICE Surge

The federal government’s brutal and often illegal use of Immigration and Customs Enforcement (ICE) personnel and other federal agents in Minnesota has generated extensive litigation. On Jan. 12, one particularly crucial case was filed by the state of Minnesota and the cities of Minneapolis and St. Paul, arguing that the federal Metro Surge operation—deploying thousands of ICE and other federal agents to the Twin Cities—violates the 10th Amendment. That amendment states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In a series of decisions supported primarily by conservative justices, such as Printz v. United States (1997) (written by conservative icon Justice Antonin Scalia), the Supreme Court has held that the federal government cannot “commandeer” state and local officials to do the federal government’s bidding, or to help enforce federal laws.

Control over state and local government personnel is one of the powers reserved to the states by the 10th Amendment. In addition, as legal scholar Michael Rappaport has shown, the original meaning of the Constitution indicates that such control is a basic element of the sovereignty inherent in being a state in the first place.

Minnesota and the two Twin Cities are among the jurisdictions that have “sanctuary policies” restricting state and local law enforcement assistance to federal immigration enforcement operations. Sanctuary jurisdictions have, for good reason, concluded that their law enforcement resources are better used to combat violent and property crime, rather than helping deport undocumented immigrants. As Minneapolis Mayor Jacob Frey puts it, “The job of our police is to keep people safe, not enforce fed immigration laws. I want them preventing homicides, not hunting down a working dad who contributes to [Minneapolis] & is from Ecuador.” The latter actually have much lower crime rates than native-born citizens, and many of those the administration seeks to deport have no criminal records at all. Local and state participation in deportation efforts also makes it more difficult to combat crime by poisoning relations between law enforcement agencies and minority communities.

Part of the purpose of the federal “surge” is to coerce Minnesota jurisdictions into giving up their sanctuary policies and using their resources to assist federal deportation efforts. As federal District Judge Katherine Menendez noted in a hearing in the case on Jan. 26, Trump administration officials have repeatedly indicated that this is one of their objectives. Attorney General Pam Bondi suggested as much in a Jan. 24 letter to Minnesota Gov. Tim Walz. A Jan. 16 White House statement explicitly indicates that Minnesota’s “sanctuary defiance” is “responsibl[e] for the enhanced enforcement operations in Minnesota.” A recent statement by Trump “border czar” Tom Homan indicates that the administration will not withdraw immigration enforcement officers from Minnesota unless state and local governments curb sanctuary policies and extend “cooperation” to federal immigration enforcers.

In addition, Bondi’s letter demands access to Minnesota’s voter rolls, linking those to the surge. That demand constitutes additional intrusion onto state autonomy in violation of the 10th Amendment. The Elections Clause of the Constitution explicitly gives states primary control over elections. While Congress can enact legislation imposing restrictions on state autonomy, no such legislation authorizes Bondi’s demands here, and courts have repeatedly rejected the administration’s demands for voter data from state governments, which one recent ruling described as “unprecedented and illegal.” With the notable exception of Homan’s comments, these and other statements fall short of demanding an explicit quid pro quo. But they provide strong evidence that the operations in Minnesota are intended to coerce the state into surrendering its autonomy on immigration and other issues.

As Minnesota’s court filing details, the federal anti-immigrant surge in the Twin Cities includes extensive illegal activities, including the use of force against peaceful protestors, racial profiling, warrantless searches of homes in violation of the Fourth Amendment, and more. Many of the migrants ICE seeks to detain did not even enter the U.S. illegally. For example, they have detained over 100 refugees who have legally applied for asylum and permanent residency, illegally transporting many to harsh detention facilities hundreds of miles away in Texas.

Federal agents have also killed two U.S. citizen protesters, Renee Good and Alex Pretti. In both cases, video evidence and eyewitness accounts show that the victims did not engage in any illegal activity that could possibly justify the killings. Pretti, an ICU nurse, had tried to help a woman who was pepper-sprayed by federal agents. The violence, cruelty, and illegality involved in many of the federal actions in Minnesota exacerbates their coercive nature.

The Minnesota case is not exactly analogous to previous anti-commandeering rulings by federal courts. But that is in part because it represents an even more blatant violation of the 10th Amendment. In Printz and other cases, such as New York v. United States (1992) and Murphy v. NCAA, the Supreme Court struck down congressional legislation requiring states to help enforce various types of federal laws, or to enact legislation of their own. In a series of decisions during the first Trump administration, and continuing in the second, numerous lower federal courts ruled that the president cannot order states to aid in immigration enforcement actions, and cannot withhold federal funds from sanctuary jurisdictions in cases where doing so would be “coercive” or Congress had not authorized immigration-related conditions on recipients.

The administration’s current actions are more egregious than those struck down in previous anti-commandeering rulings. Here, there is no congressional authorization for federal coercion of states; the president is acting on his own. And the direct use of force is even more blatantly coercive than illegally withholding federal grants. If the federal government cannot coerce states by enacting commandeering laws and imposing grant conditions, surely it cannot do so at the literal point of a gun.

While much of the coercion here is aimed at private individuals, rather than at the states directly, Minnesota’s complaint details how federal officials have also massively disrupted government operations, leading to school closures and diversion of police resources among other problems. Many legitimate federal actions can have indirect negative effects on state and local governments; for example, federal taxes can reduce the revenue available to states. But a campaign of illegal paramilitary terror, deliberately undertaken in part for the purpose of coercing states and localities, is in a fundamentally different category.

In its legal filing responding to the lawsuit, the Justice Department claims the administration is not trying to coerce Minnesota state and local governments, but merely enforcing the law. But this claim is refuted by administration officials’ numerous statements to the contrary. And if the administration were truly focused on law enforcement, its agents would not be constantly breaking the law themselves. Moreover, there is no other plausible justification for such a massive federal deployment in a state where the percentage of illegal migrants is only about half the national average.

If allowed to stand by the courts, the federal action in Minnesota would set an extremely dangerous precedent. It could easily be used against a variety of state policies, including those of conservative “gun sanctuaries”—such as Montana and Missouri—which restrict state and local assistance efforts to enforce federal gun control laws. A future Democratic administration could send thousands of armed agents to harass gun owners and disrupt state and local government operations until gun sanctuary jurisdictions drop their restrictions.

Indeed, the Minnesota operation has already threatened gun rights traditionally prized by conservatives. Administration officials have defended the killing of Alex Pretti on the grounds that he was carrying a gun at the time—even though he had a legal permit to do so, never drew the weapon, and federal agents took it from him before they shot him.

More generally, similar tactics could potentially be used to coerce states into reversing almost any policy the current occupant of the White House finds objectionable. That could easily encompass a vast range of both right- and left-wing policies, on issues as varied as environmental regulation, transgender persons’ participation in sports, and much more. For example, a left-wing administration could send federal agents to harass school officials and disrupt high school sports events in states that refuse to allow transgender women to compete in women’s sports. Or it could use them to target government offices and businesses in states with relatively low levels of labor regulation.

The framers of the Constitution wisely enacted the 10th Amendment and other constraints on federal power to ensure that no one centralized authority—and especially no one person, such as the president—could wield such sweeping coercive authority over state and local governments. 

Lawsuits by state and local governments are not the only possible remedies for ICE abuses. Suits have also been filed by private parties. But state government lawsuits are a valuable tool, because states generally have greater resources for litigation than the private victims of illegal anti-immigrant actions (many of whom are recent migrants with relatively low incomes). In addition, for procedural reasons, states can often get broader remedies than private parties when they win a case.

Many liberals have traditionally been wary of enforcing constitutional constraints on federal power, given that “states’ rights” arguments were used to defend slavery and segregation. But there is a fundamental difference between situations where state governments are themselves violating constitutional rights—as with state-imposed racial segregation—and cases where they merely refuse to help the federal government enforce federal law against private parties. Moreover, the political world has changed since the civil rights era. Today, state governments often help protect minorities against federal oppression, rather than vice versa. The sanctuary city movement dramatically illustrates this dynamic, as these jurisdictions protect vulnerable migrants and minorities subject to racial profiling by immigration enforcers. These are among the reasons why “blue” jurisdictions effectively used federalism litigation to curb federal abuses of power during the first Trump administration. Minnesota and others are right to continue doing so now.

The Constitution can help protect us against oppression by both state and federal authorities. The 10th Amendment is a valuable tool for countering the latter.