By Claire B. Wofford
President Donald Trump has begun to radically change how the U.S. government handles immigration, from challenging long-held legal concepts about who gets citizenship to using the military to transport migrants back to their countries of origin.
Trump’s administration is doing more than reshaping the approach of the federal government toward migrants: It has now ordered state and local officials to comply with all federal immigration laws, including any new executive orders. It has warned that if those officials refuse, it may criminally prosecute them.
The specter of a federal prosecutor putting a city’s mayor or a state’s governor in jail will raise what may be the greatest source of conflict in the U.S. Constitution. That conflict is how much power the federal government can wield over the states, a long-standing and unresolved dispute that will move again to the front and center of American politics and, in all likelihood, into American courtrooms.
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Investigate for potential prosecution
Besides the avalanche of executive orders remaking the federal government’s policies for the nation’s borders, a new directive from the Department of Justice provoked political backlash. Legal action may very well follow.
In the Jan. 21, 2025, memo, Acting Deputy Attorney General Emil Bove, one of Trump’s former private attorneys, directs federal prosecutors to “investigate … for potential prosecution” state and local officials who “resist, obstruct, or otherwise fail to comply” with the new administration’s immigration orders.
The memo lists multiple federal statutes that such conduct could violate, including one of the laws used to charge Donald Trump related to the Jan. 6, 2021, violence at the U.S. Capitol.
Jeenah Moon-Pool/Getty Images
Several of Trump’s executive orders, across a range of policy areas, have already provoked lawsuits. One was declared “blatantly uconstitutional” by a federal district court judge just three days after it was signed. Others fall easily within the bounds of presidential power.
But the Department of Justice memo is different.
By ordering federal prosecutors to potentially arrest, charge and imprison state and local officials, it strikes at a fundamental tension embedded in the nation’s constitutional structure in a way that Trump’s other orders do not. That tension has never been fully resolved, in either the political or legal arenas.
Bulwark against tyranny
Recognizing that division of power was necessary to prevent government tyranny, the nation’s founders split the federal government into three separate branches, the executive, legislative and judicial.
But in what, to them, was an even more important structural check, they also divided power between federal and state governments.
The practicalities of this dual sovereignty – where two governments exercise supreme power – have had to play out in practice, with often very messy results. The crux of the problem is that the Constitution explicitly grants power to both federal and state governments – but the founders did not specify what to do if the two sovereigns disagree or how any ensuing struggle should be resolved.
The failure to precisely define the contours of that partitioning of power has unfortunately generated several of the country’s most violent conflicts, including the Civil War and the Civil Rights Movement. The current Justice Department memo may reignite similar struggles.
As Bove correctly noted in his memo, Article 4 of the U.S Constitution contains the supremacy clause, which declares that federal laws “shall be the supreme Law of the Land.”
But Bove failed to mention that the Constitution also contains the 10th Amendment. Its language, that “(a)ll powers not granted to the federal government are reserved to the states or to the people, respectively,” has been interpreted by the Supreme Court to create a sphere of state sovereignty into which the federal government may not easily intrude.
Known as the “police powers,” states generally retain the ability to determine their own policies related to the health, safety, welfare, property and education of their citizens. After the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health removed federal protection for abortion rights, for instance, multiple states developed their own approaches. Marijuana legalization, assisted suicide, voting procedures and school curriculum are additional examples of issues where states have set their own policies.
This is not to say that the federal government is barred from making policies in these areas. Indeed, the great puzzle of federalism – and the great challenge for courts – has been to figure out the boundaries between state and federal power and how two sovereigns can coexist.
If it sounds confusing, that’s because it is. The country’s best legal minds have long wrestled with how to balance the powers granted by the supremacy clause and the 10th Amendment.
Push and pull
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Reflecting this tension, the Supreme Court developed a pair of legal doctrines that sit uneasily alongside each other.
The first is the doctrine of “preemption,,” in which federal law can supersede state policy in certain circumstances, such as when a congressional statute expressly withdraws certain powers from the states.
At the same time, the court has limited the reach of the federal government, particularly in its ability to tell states what to do, a doctrine now known as the “anti-commandeering rule.” Were the Trump administration to go after state or local officials, both of these legal principles could come into play.
The anti-commandeering rule was first articulated in 1992 when the Supreme Court ruled in New York v. United States that the federal government could not force a state to take control of radioactive waste generated within its boundaries.
The court relied on the doctrine again five years later, in Printz v. United States, when it rejected the federal government’s attempt to require local law enforcement officials to conduct background checks before citizens could purchase handguns.
In an opinion authored by conservative icon Antonin Scalia and joined by four other Republican-appointed Supreme Court justices, the court held that the Constitution’s framers intended states to have a “residuary and inviolable sovereignty” that barred the federal government from “impress[ing] into its service … the police officers of the 50 States.”
“This separation of the two spheres is one of the Constitution’s structural protections of liberty,” Scalia wrote. Allowing state law enforcement to be conscripted into service for the federal government would disrupt what James Madison called the “double security” the founders wanted against government tyranny and would allow the “accumulation of excessive power” in the federal government.
Justice John Paul Stevens dissented, pointing out that the 10th Amendment preserves for states only those powers that are not already given to the federal government.
What happens at the Supreme Court?
The anti-commandeering and preemption doctrines were on display again during the first Trump administration, when jurisdictions around the country declared themselves “sanctuary cities” that would protect residents from federal immigration officials.
Subsequent litigation tested whether the federal government could punish these locales by withholding federal funds. The administration lost most cases. Several courts ruled that despite its extensive power over immigration, the federal government could not financially punish states for failing to comply with federal law.
One circuit court, in contrast, formulated an “immigration exception” to the anti-commandeering rule and upheld the administration’s financial punishment of uncooperative states.
The Supreme Court has never directly ruled on how the anti-commandeering rule works in the context of immigration. While the Printz decision would seem to bar the Justice Department from acting on its threats, the court could rule that given the federal government’s nearly exclusive power over immigration, such actions do not run afoul of the anti-commandeering doctrine.
Whether such a case ever makes it to the Supreme Court is unknown. Recent events, in which a Chicago school’s staff denied entry to people they thought were immigration agents, seem to be heading toward a federal and state confrontation.
As a court watcher and scholar of judicial politics, I will be paying close attention to see whether the conservative majority on the court, many of whom recently reiterated their support for the anti-commandeering doctrine, will follow Scalia and favor state sovereignty.
Or will they do an ideological about-face in favor of this chief executive? It would not be the first time the court has taken this latter option.
Claire B. Wofford is Associate Professor of Political Science at the College of Charleston.
JimboXYZ says
Then again interfering with operations to round up & deportations has always been illegal. It’s not a threat when someone reminds that interference and even aiding & abetting will have repercussions. Shouldn’t have to be said, but hey, sometimes it has to be said for those that are most apt to challenge the immigration policies that have always existed. That way they won’t be shocked when they have to lawyer up, are convicted of their Federal crimes.
Deborah Coffey says
Sorry to say, we’ve learned the lesson…MAGAts are lawless; they couldn’t care less about any court ruling or any law at all.
Jim says
Interesting article. However, it seems obvious to me that the Trumpers in power has nothing but disdain for any and all laws or regulations that keep them from doing what they want. So, unfortunately, I don’t expect the rule of law to stop or even slow any of the actions Trump and his cronies take.
Republicans have the House and Senate. The Supreme Court appears to be fully supportive of the right wing in this country. There are no obstacles to what is going to happen. Lindsay Graham (the most spineless senator that ever existed) said on Sunday that Trump has “technically broken the law” in firing the Inspector Generals without notice or cause but that he “was fine with that”. Aileen Cannon, a federal judge has consistently ruled and taken actions to impede any and all actions by the federal government to hold Trump accountable. These are just two examples. This is just another indicator of how far this country is slipping into a fascist régime under Trump.
I think this country is in for some of the worst times we’ve ever seen in the next four years.
Laurel says
Kinda like rounding up the Jews in 1930’s Germany, wouldn’t you say?
This is what I believe:
The people behind Trump, like the Heritage Foundation, Federalist Society and white supremacists, are the think tanks that are putting forth these piles of “Executive Orders.” So easy just to sign, no work involved for Trump, and move on. Trump is not smart enough, or engaged enough, to know about the Panama Canal or Greenland, or any other world cooperation, but these think tanks know he is quite capable of marketing their ideas and make a lot of noise. Meanwhile, Trump gets the spotlight, gets even with windmills, and feels power, not to mention, makes huge sums of money while in office. The think tanks get their shake ups and agendas done. Vance is positioned to take over. We are the losers, yet, easy to buy off with “no tax on tips” pittances.
Republican politicians must be falling on their knees, hoping and praying that this all somehow works out. Good luck with that.
Thomas Hutson says
Scalia’s Ruling
Fear not, King Trump and his minions will push the envelope all the way to the Supreme Court. It will be anyone’s guess at that time what Roberts, the Housemaid and the rest of King’s Minions will do. Under Roberts they have already underpinned our democracy making King Trump above the law. Lucky for America the King and his minions are on a downhill slope (1432) days and he is GONE! No chance of King Trump’s knuckle dragging side kick to step in after him. One can bet the Governor’s in Red states like Florida and Texas will bend over for him. Those Constitutional Sheriffs will have no problem following him, they also feel they are above the law. What a show America is in for. Maybe in just (702) days America will have had enough, and vote them out! Think about that!
The dude says
All you need is a challenge case to be filed in Eileen Cannon’s court or that one district court in Texas and it’s off to the Supreme Court.
From there, it’s just a couple free rides on the private jet, free fishing trips to Alaska, or a couple free RV’s and that Supreme Court precedent is history.
joe says
As seen by Trump’s lawless and unconstitutional actions today, it should be abundantly clear he does not give one goddamn bit for anyone – even those he pretended to care for so he could scam their votes….wake up, citizens!
Trump voters – how’s that “bringing down grocery prices” promise going for you? Publix yesterday had no eggs at over $5.00/dozen….but despite bird flu raging more and more, killing more chickens, Trump has shut down the entire Public Health system…..no meeting, no outside communication, stopping funding, pulling out of the WHO (World Health Organization) – is this an example of his brilliant managerial skill??
Sherry says
trump is just recklessly throwing his “vile” executive BS orders at the wall to see if anything will stick. Lawsuits are already popping up. Guess who gets to pay for those “very expensive” legal battles, sometimes on both sides, . . . we middle class taxpayers! trump’s chaotic disrespect for law and order, rules, and ethics will end up adding millions to the budget! What social programs are going to be sacrificed for trump’s immoral lack of character and exercise of lawful conduct and process.
Just a thought says
Trump, like King Charles I, believes he is a God and can rule with impunity. I just hope Trump does not cause a civil war, as what happened during King Charles I reign. Trump better learn from history because Charles I was executed.
Pogo says
@Achtung servants, err, citizens
…you vil now stand at rigid attention, for the dear leader song:
Tony Mack says
People need to connect the dots and understand that Trump and the henchmen at the Heritage Foundation and the billionaires who support him, will do everything in their power to cancel the elections in 2026.
Start with the fact that Trump is a criminal and he will surround himself with others who think nothing of committing crimes in his name. This is not the Sunday Choir singing praises to their Lord; these are the type of evil people who cancel cancer research, raise prices on life sustaining medicines needed by millions, who gather little children from their parents; who will abrogate the amendments of the Constitution because it suits their purpose of total control, who will leave no stone unturned to enrich themselves at the suffering of others by ending or privatizing the programs needed by millions of Americans.
Consider, they have complete control of all three branches of the Federal Government as well as control over 34 states. As with Germany in the Thirties, two convicted felons having total control of the governments are not going to willingly take the risk of losing that power under a free and fair election and perhaps subjecting themselves to a fair judicial system they can’t control afterwards.
Trump has demonstrated time and again, he has no loyalty to the laws others must follow. We may claim to have a judicial system that treats all citizens fairly, but we do not have a “Justice” system when it involves Trump.
I wish more Democratic leaders would warn voters of this potential meaningful and final threat to this Republic and its’ democratic ways. Certainly, we can rely on the media to transmit the message…and too many Democratic leaders are ignoring the possibility of a Trump Empire. The Republican message that January 6th was nothing but a tourist agenda, has resonated with voters because Democrats have no messaging and no “War Room.”
End of story…end of democracy…