For decades, Immigration and Customs Enforcement (ICE) limited enforcement operations at so-called “sensitive locations” like courthouses, schools, or hospitals. But during both Trump Administrations, officials rescinded those guidelines. This report discusses states and localities’ ability to adopt their own state-law policies to protect “sensitive locations” from the disruption of warrantless immigration arrests.
For decades, Immigration and Customs Enforcement (ICE) limited enforcement operations at so-called “sensitive locations” like courthouses, schools, or hospitals. But during both Trump Administrations, officials rescinded those guidelines. As a result, communities have witnessed militarized operations at or near locations critical to civic, economic, or political life. States have also reported widespread chilling effects, with fearful individuals choosing not to attend school, seek healthcare, or participate in legal proceedings. Many states see these impacts as directly threatening their core responsibilities to residents.
In addition to arguing that ICE's arrest policies violate federal law,1 states and localities have been considering and adopting their own policies to protect “sensitive locations” from disruptive enforcement activities. This report outlines the legal context for these state-law efforts. As detailed below, state and local efforts to constrain immigration enforcement at sensitive locations lie at a contested intersection of state and federal power. To date, much of the relevant case law focuses on immigration enforcement at state courthouses. Although much will depend on the particulars of any policy, these courthouse cases suggest that states and localities have strong legal arguments for imposing at least some limits on warrantless civil immigration arrests at particular locations.
This report proceeds in three parts. Part I describes several recent state and local efforts to limit warrantless civil arrests at sensitive locations, as well as the affirmative powers that states may rely on in enacting them. Part II then analyzes likely federal objections, namely that such policies are preempted by the Immigration and Nationality Act (INA) or barred by the doctrine of intergovernmental immunity. Part III then discusses some practical obstacles for jurisdictions to consider when seeking to enforce these policies.
Although immigration arrests are mostly civil, they frequently resemble criminal arrest: armed government agents seize an individual, occasionally using force. Recognizing the disruptive potential of immigration enforcement, the federal government historically constrained the ability of agents to pursue arrests at sensitive locations or functions, including courthouses; community centers; hospitals; sites of First Amendment activity, such as religious services, marches, or rallies; or any place “that children gather,” like daycares and playgrounds.2
Both the first and second Trump administrations, however, walked back portions of these policies. First, in 2018, the Department of Homeland Security (DHS) rescinded longstanding guidance that discouraged immigration enforcement operations at or near courthouses.3 (Limitations on courthouse arrests were temporarily reinstated during the Biden administration.) Then, in 2025, ICE rescinded all earlier guidance discouraging enforcement in “protected areas,”4replacing the policy with a new directive, “Common Sense Enforcement Actions in or Near Protected Areas.”5The new policy announced that “the Department will not be issuing bright line rules regarding where immigration laws are permitted to be exercised,” and instead officials will make “case-by-case determinations regarding whether, where, and when to conduct an immigration enforcement action in or near a protected area.”6 Since the implementation of that directive, states and localities have witnessed high-profile immigration enforcement actions at previously protected locations.7
In response, states and localities have increasingly considered and enacted policies that aim to limit immigration enforcement at sensitive locations. Although these policies vary in their approaches, it bears noting that none of them seeks to bar immigration arrests entirely at any location. Instead, they limit warrantless civil arrests. If federal agents have a judicially issued arrest warrant, the policies do not purport to restrict their activities.8
The first—and most widely litigated—set of these policies addressed immigration arrests at courthouses.9After DHS in 2018 rescinded its prior guidance limiting courthouse operations, several courts issued policies aimed at preventing civil immigration arrests on court premises. New York’s initial policy, for example, announced that “[a]rrests by agents of U.S. Immigration and Customs Enforcement may be executed inside a New York State courthouse only pursuant to a judicial warrant or judicial order authorizing the arrest.”10 Other states prohibited “civil arrests” more broadly. Oregon’s court system announced that: “No person may subject an individual to civil arrest without a judicial warrant or judicial order when the individual is in a courthouse or within the environs of a courthouse.”11Several other states and localities promulgated largely identical policies,12 and several have recently codified their policies into statute, including Illinois13 and New York14 in 2025.
Recently, states and localities have sought to limit civil arrests at additional sensitive locations beyond courthouses. One set of proposals directs state or local government employees not to grant federal immigration officials access to non-public areas of public property absent an exigency or judicial warrant. California, for example, has enacted legislation providing that “school officials and employees of a local educational agency shall not . . . [a]llow an officer or employee of an agency conducting immigration enforcement to enter a nonpublic area of a schoolsite for any purpose without being presented with a valid judicial warrant or judicial subpoena, or a court order.”15 Executive Order 152 from the mayor of Denver, Colorado is similar. It provides: “The City shall not allow civil immigration enforcement personnel into non-public spaces . . . without a valid judicial warrant, court order, or as otherwise required by law.”16 New York City’s Administrative Code likewise “prohibits non-local law enforcement from accessing non-public areas of City property, including shelters and schools, without a judicial warrant.”17
Several states have sought to ensure that sensitive locations on private property do not grant access to immigration agents absent a judicial warrant. Oregon, for example, requires all health care facilities to designate patient rooms, as well as any location where “entry or access to the area is controlled” as “not open to the public” for law enforcement purposes.18 Oregon has paired this directive with a separate civil cause of action, authorizing suits for damages and injunctive relief by any “owner or occupant of property, or a person lawfully present on property with a reasonable expectation of privacy,” against any individual who “under color of law enters the property without a warrant for which the issuing authority is a court.”19 This cause of action expressly extends to those present not just at health care facilities, but also at schools and houses of worship.20New Jersey, meanwhile, has directed state actors like the Attorney General to create model policies that “ensure personal freedom at sensitive locations,” and directed state Commissioners of Education, Health, Corrections, and Community Affairs, Children and Families, and Human Services to “require” compliance with these policies within their fields.21
Going further than simply declining to grant access or creating non-public areas, some states are seeking to prohibit warrantless civil arrests at sensitive locations outright. Connecticut, for example, recently enacted a statute providing that absent a judicial warrant, no “peace officer”—a category that includes federal law enforcement—"shall detain, arrest or otherwise take an individual . . . into custody on the basis of a civil offense” in any state or municipal building; school; hospital; place or worship; playground, recreation center, or childcare center; social services establishment (like a shelter, food bank, or treatment facility); emergency response location; or cemetery.22 Legislation filed by Massachusetts Governor Maura Healey likewise specifies that “arrests for civil immigration enforcement shall not be permitted” at protected locations, including schools, healthcare providers, or childcare center unless accompanied by a judicial warrant.23 A proposed bill in New York similarly establishes a “privilege” against civil arrest: “A person shall be privileged from civil arrest while within one thousand feet of a sensitive location, unless such civil arrest is supported by a judicial warrant or judicial order authorizing such civil arrest.”24 Sensitive locations include medical treatment centers; all schools (public and private); providers of emergency services; locations of any organization that “assists children, pregnant individuals, victims of crime or abuse, or individuals with significant mental or physical disabilities”; any “place of worship or site of funerals, weddings, or other religious ceremonies”; and any office of a state or local elected official.25 And the Vermont Senate similarly passed legislation in March providing that absent a judicial warrant, “[a] person shall not be subject to civil arrest while traveling to, entering, remaining at, or returning from” court proceedings, polling places, educational institutions, shelters, or health care facilities.26 Michigan, too, has proposed a bill that simply states: “A federal immigration officer may not conduct an immigration enforcement action in a non-public area of a protected area” such as a courthouse, educational facility, hospital, library, place or worship, or social services provider absent a judicial warrant or exigency.27
These proposals often do not lay out their legal reasoning expressly. However, there are several affirmative authorities that states are likely relying on in pursuing these policies.
First, states and localities possess broad authority over public property. State and local governments routinely regulate access to public spaces like parks or municipal buildings; designate areas or property that are not open to the public; or limit who can access spaces based on their relationship to the services provided (such as who can enter a public school).28 In general, limiting which portions of property individuals can access would seem to fall squarely within traditional state and local proprietary power.
Second, and relatedly, states and localities possess near-absolute authority over their own staff or agents. In the words of one federal court, “[a] state’s ability to control its officers and employees lies at the heart of state sovereignty.”29 That is particularly true because the federal government lacks the “power to issue direct orders to the governments of the States.”30 This “anti-commandeering” principle, rooted in the Tenth Amendment, means that the federal government “may not conscript state governments as its agents,”31 “nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”32 States have wide discretion to direct their own personnel to act, or not act, in any particular manner.
Any policy directing employees—or even private institutions—to limit federal agents’ access to “non-public” areas also likely relies on Fourth Amendment principles. Traditionally, the Fourth Amendment requires federal officers to obtain either a warrant or consent to enter areas where individuals retain a reasonable expectation of privacy. Policies “requiring” private property—such as hospitals—to deny law enforcement access to non-public areas are simply directives to those institutions to uphold their Fourth Amendment rights by not consenting to any search that would otherwise require a judicial warrant. Although it is not entirely clear whether states and localities possess the same Fourth Amendment rights as private parties, any policy requiring warrants to access non-public areas of state or local property likewise codifies the denial of consent to enter, treating non-public areas of public facilities as if they were private property.
Third, states have sovereign interests in their own capacity to govern. Federalism is premised on the “essential sovereignty of the States.”33 Although scholars have debated the precise contours of state “sovereignty,”34 at a minimum the concept entails each “[s]tate’s constitutional responsibility for . . . operation of its own government.”35 For quintessentially governmental functions—like operating courts, providing polling places, or ensuring municipal operations—states have additional authority to operate without federal intrusion.
Fourth, and arguably most expansively, states are relying on their historic police power to protect the health and wellbeing of their residents. This power is broad: although the Supreme Court has “refrained from any attempt to define the limits of [the police] power,” it has explained that it extends to “all laws that relate to matters completely within [a state’s] territory” and embraces, “at least,” state measures that “protect the public health and the public safety.”36 As a general matter, states’ police powers include protecting residents’ access to essential locations or services like educational facilities,37 public property,38 public libraries,39 and healthcare.40 As Supreme Court Justice Hugo Black wrote, “no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes . . . or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.”41 At their core, policies limiting arrests at sensitive locations are embodiments of this principle.
But state authority is only one half of the puzzle. The federal government will likely argue that any state preference must yield to federal enforcement priorities. The next section lays out the expected federal objections to state limitations on warrantless civil arrest and analyzes how courts may approach the balance of federal and state authority in this area.
There is little question that these policies will result in litigation, with the federal government vehemently defending its authority to pursue immigration arrests free from any state-imposed limitations. Indeed, there has already been substantial litigation surrounding ICE’s initial 2018 recission of its internal guidance on courthouse arrests, and more recently the federal government has sued multiple jurisdictions over their policies barring warrantless courthouse arrests.42
Based on the litigation to date, the federal government will likely raise two chief objections to any policy limiting warrantless civil arrests: (1) that the INA preempts state regulations affecting immigration enforcement, including attempts to limit warrantless civil arrests at certain protected areas; and (2) that such state policies interfere with authorized federal operations in violation of the “intergovernmental immunity” doctrine.
These doctrines are discussed in turn below. While it is somewhat unclear how courts will apply these doctrines to novel policies, existing litigation surrounding limitations on courthouse arrests suggests that states have strong arguments that these policies are neither displaced by the INA nor categorically barred by the Supremacy Clause.
The federal government will almost certainly raise preemption arguments against any state policy affecting immigration arrests. Preemption is rooted in the Constitution’s Supremacy Clause, which makes federal law “the supreme Law of the Land.”43 When state laws and federal laws conflict with one another, federal law displaces the conflicting state law.44
Preemption can take several forms. There is “express” preemption, where a federal statute explicitly precludes state legislation. There is also implied preemption—which includes “field” preemption, where Congress has de facto excluded states from regulating in an entire field (for example, nuclear power plant safety),45and “conflict” preemption, where a specific state law impermissibly interferes with a federal objective (for example, state laws prohibiting dealings with a specific country where the federal government wants to do business).46 The Supreme Court has explained that these different forms of preemption largely “work in the same way.”47 They all require the federal government to “point specifically to a constitutional text or a federal statute that does the displacing or conflicts with state law,” rather than merely “[i]nvoking some brooding federal interest.”48
In approaching questions of preemption, courts start by presuming that Congress did not intend to displace state law.49 That presumption against preemption increases where Congress “legislate[s] in areas traditionally regulated by the States,”50 and it “has greatest force when Congress legislates in an area traditionally governed by the States’ police powers.”51 Courts will not hold that “the historic police powers of the States [have been] superseded . . . unless that was the clear and manifest purpose of Congress.”52
The INA contains no language that directly addresses state authority to regulate civil arrests. Accordingly, preemption challenges to state policies will likely take the form of field or conflict preemption claims.
In litigation addressing courthouse arrest policies, the federal government has argued that “the federal government has exclusive authority over immigration,” and therefore state laws that affect immigration enforcement are preempted as a category.53
The leading case on the preemptive scope of the INA and federal power over immigration is the U.S. Supreme Court’s 2012 decision in Arizona v. United States.54 There, the Supreme Court invalidated a series of state laws that criminalized immigration offenses already illegal under federal law, and granted state law enforcement the authority to detain individuals suspected of being present unlawfully in the United States. Although Arizona accepts that the federal government possesses broad authority over immigrant registration and removal, the Court stopped short of suggesting that the INA preempts any state law that touches on or affects immigration enforcement. To the contrary, the Court made clear that while several of Arizona’s laws conflicted with the INA, only one of the challenged provisions was field-preempted: the provision criminalizing failure to comply with federal alien-registration requirements, since Congress had created an exclusive regime.55
Consistent with Arizona, courts have thus far rejected the federal government’s arguments that the federal government’s exclusive role in setting federal immigration policy necessarily displaces all state laws that affect immigration enforcement. These courts have explained that, while the Supreme Court has described federal immigration law as “occupy[ing] the field of alien registration,”56 the INA does not contain language that categorically displaces state regulation of civil arrests. For example, a New York federal court citing Arizona concluded: “Insofar as defendants are arguing that any state law touching upon immigration is presumptively invalid, the language of the INA does not compel such a result. While the statute preempts state laws that criminalize federal immigration violations, it does not necessarily preempt state laws that narrowly limit federal enforcement authority.”57 The alternative conclusion, the Court reasoned, “would effectively bar states’ sovereign interests from imposing any limitations on ICE’s enforcement discretion, which is a reading that is not ‘clear and manifest’ from the language of the statute.”58 This conclusion is consistent with the weight of authority: In analyzing field preemption claims, the Fifth,59 Seventh,60 and Ninth61 Circuits have all similarly concluded that Arizona does not displace state authority entirely in the realm of immigration enforcement. Based on these precedents, states can forcefully argue that the INA does not categorically foreclose state and local civil arrest policies.
Conflict, or obstacle, preemption claims will present a closer call. Under conflict preemption, a state law is invalid if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”62 The federal government will likely argue, as it has in recent litigation challenging New York’s courthouse policy, that these policies have the “effect of thwarting federal immigration enforcement” because, in the government’s view, “the INA authorizes immigration officials to make civil arrests, without judicial warrants and without geographical limitation.”63 But here, too, states have powerful arguments that nothing in the INA displaces state authority in this area.
States’ initial response can be simple: policies limiting enforcement at courthouses, schools, hospitals, daycares, or other sensitive locations pose no direct conflict with the INA because the statute says nothing about arrests in these spaces. In the words of one federal court: “the general INA civil arrest provisions do not expressly authorize federal officials to undertake enforcement actions in state courthouses,” and “the INA is similarly silent as to whether civil immigration arrests may take place in state facilities where a State has exercised its sovereign prerogative in restricting the use of its facilities for such activities.”64
That silence about arrests at sensitive locations like hospitals, courthouses, and schools is revealing, since the INA does authorize warrantless arrests in other locations, like private lands within 25 miles of the border or on certain vessels, railway cars, aircraft, or other vehicles.65 That shows that Congress knows how to authorize particular arrests when it so chooses—and, as Courts routinely repeat when interpreting statutes, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”66
That absence of express authorization for warrantless civil arrests at sensitive locations is especially important because, as noted earlier, state policies protecting these places and functions will typically be exercises of historic police power. ICE has recently pursued operations in courthouses,67 in hospitals,68at daycare facilities,69and near schools70—all sites critical to resident wellbeing. In addition to service disruptions at these locations, states and localities can point to the chilling effects of such enforcement: jurisdictions have reported diminished school attendance or closures due to ICE raids;71families avoiding visits to doctors’ offices or other facilities for essential healthcare;72or residents forgoing economic activity.73Indeed, cities have blamed ICE surges for tens of millions of dollars in economic losses.74Addressing these impacts on public wellbeing would seem to be at the heart of state police power, and a federal statute cannot preempt states’ police power “unless that was the clear and manifest purpose of Congress.”75
States can argue that nothing in the INA evinces a congressional intent to divest states of the power to address these harms, much less a “clear and manifest” intent. Again, decisions interpreting the INA in the context of courthouse arrests are instructive. The leading state argument for limiting courthouse immigration arrests has been that those traveling to, participating in, or traveling from, court business enjoy a common-law privilege against civil arrest.76 Most federal courts confronting this claim have concluded that the INA’s silence means the statute likely incorporates, rather than displaces, this longstanding privilege.77 As one federal court in New York wrote: “[b]ecause the INA provides no indication that Congress intended to abrogate the common law privilege against civil courthouse arrests—let alone an ‘unmistakably clear’ one—the Court concludes that the statute incorporates the privilege.”78 Importantly, the two courts that rejected these arguments did so only because they reasoned that the common-law privilege itself did not protect against immigration arrests; no court has held that the INA contains language sufficiently clear to abrogate the common-law privilege.79
This matters because the inquiry into congressional intent—and the strong presumption against displacement—is essentially identical for statutes that abrogate the common law and for statutes that intrude on historic state police power.80Conflict preemption arguments against exercises of police power therefore should fare similarly. If the INA lacks sufficiently forceful language to displace historic state common-law privileges, the same language presumably should not be read to displace historic police powers.
States also have powerful evidence that the means they have chosen—regulating the manner of civil arrests—sit comfortably within states’ historical authority. As the primary enforcers of public order, states have long imposed procedures and processes for arrest (subject, of course, to federal constitutional constraints). Historically, this included regulating civil arrests—even in the context of immigration. Although immigration is viewed today as principally a federal concern,81 federal immigration enforcement, and later deportations, did not evolve until the end of the nineteenth and into the twentieth century.82 Before then, immigration and the expulsion of foreigners was a largely matter of state authority.83 As Lindsay Nash’s scholarship has described, “[w]ell before the enactment of any federal removal statute, warrants of removal that provided for civil expulsion were a well-established feature of state law.”84 Notably, just like states’ proposed policies protecting sensitive locations, these earlier state policies did not authorize warrantless civil arrests. As Nash recounts, “[w]hile some aspects of these laws varied across states, the laws and practice materials show that these laws were remarkably consistent in terms of arrest authority: They only authorized arrests for purposes of civil expulsion proceedings pursuant to warrants issued by magistrates or tribunals with judicial power.”85 Again, nothing in the INA appears to divest states of the historic authority to regulate where a judicial warrant is required for civil arrest.
Finally, historical federal practice also cuts against any argument that these limitations on warrantless arrests truly thwart Congress’s vision. If immigration enforcement at sensitive locations like courthouses, hospitals, or schools was necessary to fully vindicate Congress’s intent, one might expect to see a robust federal history of such enforcement. Instead, the opposite is true: recognizing the disruptive potential of immigration enforcement, the federal government historically constrained the ability of agents to pursue arrests or detentions at sensitive locations or functions, just as states are doing now. As early as 1993, the Immigration and Nationality Service (INS)—a predecessor to today’s DHS—issued a memo requiring advanced written approval before any enforcement action at any school, funeral, place of worship, or religious ceremony.86 Building on that initial memo, various federal agencies charged with immigration enforcement applied internal constraints to operations at particular “sensitive” locations—a concept which grew to include community centers; hospitals; courthouses; sites of First Amendment activity, such as marches or rallies; or any place “that children gather,” including daycares and playgrounds.87 In 2021, internal ICE enforcement guidelines described as a “foundational principle” the policy that “[t]o the fullest extent possible, [the agency] should not take an enforcement action in or near a location that would restrain people’s access to essential services or engagement in essential activities.”88
Of course, the executive branch possesses prosecutorial discretion and is entitled to adjust its enforcement priorities. But current federal policy allowing INA enforcement at any location appears only in informal agency guidance.89 Such enforcement priorities do not, alone, carry any preemptive force in the absence of a clear statutory directive or agency action that carries the force of law.90The Supreme Court’s recent decision in Kansas v. Garcia is illustrative.91 There, plaintiffs argued that a state law was preempted because it “risk[ed] upsetting federal enforcement priorities.”92 The Court flatly concluded that “the possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption. The Supremacy Clause gives priority to ‘the Laws of the United States,’ not the [specific] law enforcement priorities or preferences of federal officers.”93 That same logic should apply here: if (as most courts have concluded to date) the INA does not evince a congressional decision to prioritize courthouse arrests over traditional state power, a mere executive branch preference to carry out such arrests lacks preemptive force.
Finally, it is possible that the federal government may raise an additional argument: that states cannot require judicial—as opposed to administrative—warrants for immigration arrests, no matter the location or context. In general, it is true that the INA authorizes immigration arrests based “[o]n a warrant issued by the Attorney General.”94As that reference to the Attorney General makes clear, the administrative “warrant” referenced in this provision differs from a traditional judicial warrant issued by a neutral magistrate. In practice, essentially any immigration enforcement official may issue an administrative warrant; the Attorney General’s power to issue these administrative warrants has been delegated to over fifty types of executive branch officials, including officers empowered to make arrests.95 Regulations also allow the Secretary of Homeland Security to further sub-delegate the warrant power.96
But while an administrative warrant may be sufficient to seize an individual encountered by immigration officials, the prevailing understanding has long been that immigration officers require more than an administrative warrant to enter—that is, to search—private property or non-public areas of buildings (unless the owner consents). That is because the Fourth Amendment typically requires that such intrusions be approved by a neutral decisionmaker who is detached from the interests of whoever is seeking the warrant.97 Multiple federal courts have concluded that “[a]dministrative warrants do not comply with the requirements that the Fourth Amendment places on judicial warrants,”98 including when officers seek to enter private property for the purposes of immigration enforcement.99 ICE has previously accepted this constitutional understanding. That view was memorialized in submissions to Congress;100 reflected in training materials;101 and confirmed in litigation as recently as 2024.102
Again, federal practice has now shifted. In early 2026, a whistleblower disclosed an internal DHS memorandum asserting that administrative warrants, alone, may authorize non-consensual entry into a private home or non-public areas. Although the memo specifically addressed “final orders of removal”—that is, cases where an immigration judge has ordered someone removed—its reasoning was broader, concluding that “that the U.S. Constitution, the Immigration and Nationality Act, and the immigration regulations do not prohibit relying on administrative warrants for [the] purpose [of entering a private home].”103DHS’s new position has generated substantial pushback, including congressional objections104 and litigation.105
The federal government could conceivably invoke this interpretation of the INA for preemption purposes, arguing that a state law requiring a judicial warrant for any civil arrest conflicts with the INA. Although it is difficult to predict exactly how a court would evaluate this argument, the federal government would seem to face an uphill task. DHS has defended its legal rationale publicly since the memo’s disclosure,106 but Fourth Amendment scholars like Orin Kerr have suggested that DHS’s arguments are unlikely to persuade federal courts that administrative warrants, alone, lawfully authorize entry into private areas.107 Moreover, given ICE’s longstanding prior view that the Constitution demands judicial warrants to enter areas with a reasonable expectation of privacy, it would be difficult to argue that a state judicial warrant requirement “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”108 which, after all, oversaw ICE’s prior interpretation over multiple decades, apparently without objection.
For all of these reasons, states have persuasive responses to any federal claim that the INA preempts policies requiring judicial warrants for arrests at certain sensitive locations.
The federal government will also likely raise arguments rooted in the Supremacy Clause’s requirement that states cannot “interfer[e] with or control[] the operations of the Federal Government.”109This foundational concept originated in the famous case McCulloch v. Maryland, where the Supreme Court held that the Supremacy Clause prohibited Maryland’s attempt to tax the Bank of the United States.110One outgrowth of this principle is the doctrine of “intergovernmental immunity,” which bars state and local laws that “either regulate the United States directly or discriminate against the Federal Government or those with whom it deals.”111There are numerous open questions in this area, which makes it difficult to predict how courts will apply the doctrine to policies that limit warrantless civil arrests. Nevertheless, states have several potentially meritorious arguments that such policies do not violate either prong of the intergovernmental immunity standard.
Intergovernmental immunity doctrine prohibits any state law that “regulate[s] the United States directly.”112 Whether a law amounts to a direct regulation is frequently unclear and contested.
The federal government will claim that sensitive location policies directly “regulate” federal officials conducting immigration enforcement by imposing constraints above and beyond federal law. The government has already raised these arguments against courthouse arrest policies. For instance, in its lawsuit against Illinois’s courthouse protection statute, DOJ’s Complaint argued that “[b]y dictating where federal law enforcement can effect civil arrests and who may be arrested, the [law] directly regulates the Federal Government in direct contravention of the Supremacy Clause of the United States Constitution.”113 This framing mirrors arguments in the government’s suit against New York’s “Protect Our Courthouse Act”: “[t]he intent and effect of these provisions,” DOJ has asserted, “is to impose geographical limitations on immigration arrests where federal law provides none” and therefore the law’s requirements “substantially interfere with federal operations.”114 The government has raised analogous claims against state policies requiring identification or prohibiting masking.115
States will have several responses as to why policies requiring judicial warrants for civil arrests do not constitute “direct regulation.”
First, for policies addressing civil arrests at or near state and local property, jurisdictions have compelling arguments that they are simply regulating their own premises, not impermissibly “directing” the federal government. When states exercise authority as “proprietors”—acting not as a governmental regulator, but instead dictating a premise’s use just as a private person might—courts have suggested that principles of intergovernmental immunity likely do not apply.116 For example, a New York federal court rejected an intergovernmental immunity challenge to a courthouse arrest policy because, by “defining what activities are not permissible” on its own premises, New York was acting as “‘as a proprietor, not a regulator.’”117 This reasoning draws on cases distinguishing between states exercising quintessentially governmental powers and acting “just as a private party would.”118 The New York federal court, for example, pointed to a Fifth Circuit decision in which Texas litigated against DHS, U.S. Customs and Border Protection, and others for allegedly cutting razor wire the state had placed near the border. Rejecting the federal government’s assertion of intergovernmental immunity, the Fifth Circuit explained that “because Texas has sued to preserve its own property” just as a private party might, it was “not seeking to ‘regulate’ Defendants” within the meaning of the Supremacy Clause.119 Although this reasoning will not apply to state policies limiting civil arrest at private sensitive locations such as shelters, private schools, or private hospitals, states exercising authority over their own locations can argue that their proprietary actions simply do not implicate intergovernmental immunity at all.
Second, and relatedly, states and localities directing their own employees or protecting their own resources can invoke anti-commandeering principles as a backstop to intergovernmental immunity arguments. As discussed, the Tenth Amendment precludes the federal government from directing the actions of state governments or state officials. Consistent with that constitutional principle, several provisions of the INA contemplate that state and local officials may choose whether to cooperate with the federal government to facilitate immigration enforcement.120
State policies grounded in non-cooperation or non-assistance, as opposed to outright prohibitions, can potentially draw on anti-commandeering doctrine to contest claims of intergovernmental immunity. Policies directing employees to insist on a judicial warrant before allowing federal officials into non-public areas are, functionally, decisions not to voluntarily assist federal actors by consenting to otherwise-unlawful warrantless searches. Several federal courts have concluded that intergovernmental immunity should not apply to such choices; if the federal government lacks the authority to compel state or local participation in immigration enforcement, it cannot be the case that states’ non-assistance undermines legitimate federal authority in the way the Supremacy Clause prohibits.
In a recent challenge to New York’s courthouse arrest statute, for example, a federal court held that a state’s “decision to not participate in enforcing civil immigration law” was “protected by the Tenth Amendment and not preempted by the INA,” and therefore its decision to require a judicial warrant “cannot be invalidated merely by recasting that otherwise permissible choice under the intergovernmental immunity lens.”121 This reasoning tracks how federal courts have addressed immigration non-cooperation policies in other contexts: they have repeatedly held that state and local decisions not to assist federal operations do not run afoul of intergovernmental immunity.122 In contrast, several appellate courts have concluded that states may run afoul of intergovernmental immunity if (acting as regulators) they prohibit private facilities from working with ICE, especially when doing so would substantially impact ICE operations.123 But when states or localities direct their own employees or resources, the Tenth Amendment offers an additional—powerful—response to intergovernmental immunity arguments.
Third, and most expansively, states may argue that so long as policies prohibit warrantless civil arrests only at a limited set of specified locations, they do not rise to the level of “regulating” federal operations within the specific meaning of the Supremacy Clause.
The canonical (albeit somewhat cryptic) Supreme Court precedent on how neutral state regulations apply to federal actors is Johnson v. Maryland, which overturned the state criminal conviction of a federal Post Office employee for driving his government vehicle without a state-issued driver’s license.124 On one hand, the Court observed that “an employee of the United States” is not generally immune “from state law while acting in the course of his employment.”125 Thus, where “the United States has not spoken,” state law can validly apply, even if it “affect[s] incidentally the mode of carrying out the [federal] employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets.”126 On the other hand, however, the Court explained that “even the most unquestionable and most universally applicable of state laws . . . will not be allowed to control the conduct of [an agent] of the United States acting under and in pursuance of the laws of the United States.”127 Accordingly, a state may not “require[] that [federal officials] desist from performance [of their federal duties] until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on.”128
One reading of Johnson is that not all burdens or limitations on federal action violate intergovernmental immunity. Under this formulation, courts considering whether a policy constitutes “direct regulation” should ask whether a law touching on federal functions is more like a traffic law, which “affect[s]incidentally the mode of carrying out” federal actions, or more like a permit or license requirement that “control[s] the conduct of [an agent] of the United States” or “requires that [federal officials] desist from performance” until they conform to state law. Many courts have applied the doctrine in exactly this way: as related explainers on mask policies and property explore in greater detail,129these decisions distinguish between state policies that “control” a federal function—essentially “mak[ing] it unlawful to carry out the duties of a federal office without local permission”130 —and those that incidentally affect it.
Under this view of the doctrine, requiring DHS officials to obtain a judicial warrant to arrest an individual at, say, a school, hospital, courthouse, or shelter at least arguably qualifies as an incidental burden or inconvenience, as opposed to an outright veto point. Such requirements appear less constraining than blanket state bans on private detention facilities, which two federal circuit courts have concluded amounted to impermissible direct regulation. A California law barring private detention facilities, in the eyes of the Ninth Circuit, “requir[ed] ICE to entirely transform its approach to detention in the state or else abandon its California facilities” and gave “California a ‘virtual power of review’ over ICE’s detention decisions.”131 The Third Circuit struck down a similar New Jersey ban because it “prevent[ed] the federal government from choosing how and through whom it will carry out a core federal function,” and “destroy[ed]” the federal government’s discretion in immigration “[b]y barring all contractors from the market.”132
These cases stand in contrast to other recent decisions holding that certain state actions or policies only incidentally burdened federal operations, even if they impacted how federal agents might carry out their responsibilities. This includes the Fifth Circuit’s conclusion that intergovernmental immunity did not bar Texas’s efforts to construct and maintain concertina wire fencing along the border with Mexico. The court explained that “the key question” was “whether state law seeks to improperly ‘control’ the employee’s federal duties, or whether the law only ‘might affect incidentally the mode of carrying out the employment.’”133 Even though Texas’s suit affected how federal agents carried out their duties, and even though it “impose[d] a burden on agents,” there was no intergovernmental immunity bar because the impact was only incidental to achieving the federal policy.134 A district court in Illinois upheld a policy requiring criminal, as opposed to administrative, warrants to honor an ICE detainer request on similar grounds: these policies did not substantially affect federal operations, the court explained, because “they leave open ICE’s ability to obtain and present a criminal warrant, thereby receiving the assistance and information it seeks.”135 And a federal district court in California recently applied similar logic to the federal government’s challenge to the state’s ban on law enforcement wearing masks, concluding that the government “ha[d] not shown that its current practices with respect to masking and identification are essential to federal law enforcement operations.”136 The court therefore found the ban to be “analogous to traffic laws that, in a similar sense, dictate how a federal officer may operate a vehicle on state roads but are nonetheless enforceable against federal officers, subject to immunities.”137
Such reasoning could apply equally to generally applicable limitations on warrantless civil arrest. State policies that require a judicial warrant for civil arrests at a limited universe of locations do not affect the mine-run of immigration enforcement actions and still allow the federal government to pursue these actions subject to an additional procedural step. Nor do these policies place states in the role of decision-maker, usurping federal discretion over a federal function.138 In the words of a New York court dismissing a challenge to its courthouse arrest policy, these limitations simply should not “impose a burden on the federal government in a way the intergovernmental immunity doctrine considers problematic.”139
A recent decision from the Ninth Circuit, however, perhaps complicates the “direct regulation” analysis. Reversing a portion of the California district court decision referenced above, the Ninth Circuit held that California’s law requiring law enforcement to display identification was impermissible, whatever its practical impact on federal operations, because it “directly regulate[d] conduct reserved to sovereigns.”140 The panel distinguished Johnson’s example of traffic laws on the ground that traffic laws “regulat[e] conduct that any ordinary citizen could perform,” whereas California’s prohibition on concealing one’s identity “applie[d] exclusively to law enforcement agencies and their officers, including federal law enforcement agencies and federal law enforcement officers.”141 Because the regulation applied to “the federal government qua government,”142the panel concluded that it was “void irrespective of whether the regulated activities are essential to federal functions or operations, and irrespective of the degree to which the state law interferes with federal functions or operations.”143
It is unclear how this reasoning might apply to sensitive location policies. The Ninth Circuit panel did not purport to alter the existing legal test, nor did it fully explain its distinction between laws that permissibly “regulat[e] conduct that any ordinary citizen could perform” versus state polices that unlawfully “directly regulate[] conduct reserved to sovereigns.” Policies requiring judicial warrants for civil arrest could conceivably fall into either camp, perhaps depending in part on their precise wording. On the one hand, some policies are framed as granting private individuals protections or privileges from arrest. And, as noted earlier, civil arrest, as a concept, encompasses more than simply immigration arrests, and is rooted in forms of compulsory process that private actors can invoke, especially now.144 In that sense, they are perhaps more like traffic laws that apply to all persons, not just government qua government. On the other hand, the federal government’s chief objection to courthouse arrest policies is that these protections impact immigration enforcement, which is a sovereign prerogative that ordinary citizens cannot undertake. For that matter, so is seeking a judicial warrant, as the concept of “warrantless” entry applies only to those acting under color of law.
State responses, accordingly, will likely vary depending on the direct regulation “test” their circuit employs. If a court continues to apply a test that, in the words of the Third Circuit, focuses on an “anti-interference throughline,”145 states will have compelling arguments that so long as these policies leave open ample room for alternative modes of federal immigration enforcement, requiring ICE to obtain a judicial warrant for arrests at particular locations is analogous to the incidental burdens courts have largely countenanced. If a federal court repeats the Ninth Circuit’s reasoning in its recent identification decision, however, states will have to address the degree to which their policies chiefly target “ordinary,” as opposed to “sovereign,” acts.
The federal government may separately raise objections that certain state policies “discriminate” against federal actors—the second prong of the intergovernmental immunity standard.
Discriminatory laws are simply those that single out federal functions or employees for special disfavored treatment.146 A recent Ninth Circuit decision is illustrative: there, the court struck down a County executive order that sought to bar local airfields from servicing ICE flights; as the panel explained, “[b]y burden[ing] federal operations, and only federal operations, the [County] Executive Order violates the anti-discrimination principle of the intergovernmental immunity doctrine.”147But state policies need not—and arguably should not—focus on federal officials alone when limiting warrantless civil arrests. As several of the examples discussed in Part I reflect, many state policies protect “a person” or “any person” from warrantless civil arrest.148 Even if these laws predominantly apply to immigration arrests, they should not constitute discrimination. The Supreme Court has made clear that a state law does not implicate the Supremacy Clause “just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way.”149
More difficult questions arise around policies that apply only to particular contexts like “civil immigration enforcement” or “civil immigration arrests.” The federal government has sued Illinois over this language in a related context, arguing that the statute violates the anti-discrimination principle of intergovernmental immunity since the Act “expressly singles out for disfavored treatment officers who conduct ‘civil immigration enforcement,’ an area of law enforcement largely reserved to federal officers.”150
Federal courts appear divided on whether laws specific to immigration enforcement discriminate against the federal government. The Supreme Court has explained that “[t]he State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them.”151 Based on that instruction, several appellate decisions have reasoned that state laws referencing immigration do not necessarily discriminate against the federal government unless the federal government is treated worse than another similarly situated actor.152 Other courts, however, have taken a more functional approach to the doctrine, invalidating policies that appear to single out “federal immigration operations, based on the [jurisdiction’s] disagreement with federal policy.”153
It is unclear whether, or how, the principle that states or localities have broader leeway to act as “proprietors” than as regulators may impact the discrimination analysis. On the one hand, a state or local decision to prohibit the use of city or state property for even a uniquely federal activity, like immigration enforcement, is likely protected under the Tenth Amendment regardless.154 But that is likely because such a “prohibition” is, in effect, a decision not to offer the federal government a benefit not offered to the general public—the federal government cannot compel states or localities to allow a specialized federal use of their property. On the other hand, courts may hesitate to endorse state action, even if “proprietary,” that singles out the federal government for disfavored treatment vis-à-vis the general public. As a related explainer discusses, states and localities may face uphill battles if they attempt to bar federal officials, like ICE, from using public sidewalks or roadways that are open to members of the public.155 That said, no court appears to have squarely addressed whether or when states acting as “proprietors” remain subject to discrimination challenges, or whether property-based actions sidestep the intergovernmental immunity inquiry altogether.
As with other aspects of the analysis, disputes over the discrimination prong of the doctrine may turn on specific drafting choices. Policymakers may wish to sidestep these questions through more universal language prohibiting warrantless civil arrests across contexts—especially since the concept of “civil arrest” historically encompassed far more than just immigration arrests.156
When states pass policies protecting their residents, the hope is that the federal government will choose to comply. But states and localities may wonder: what recourse do they have if a federal official violates a state policy limiting warrantless civil arrest? Several enforcement-related considerations bear emphasizing.
First, many proposals or enactments allow individuals to bring an action for declaratory or injunctive relief—essentially a court order to force the federal government to comply with the state law. New York’s “Protect Our Courthouses Act,” for example, authorizes “a civil action for appropriate equitable and declaratory relief” where a person “has reasonable cause to believe a violation . . . has occurred or may occur.”157 The Attorney General may do the same.158 Other states have considered or enacted similar provisions.159
Actions for injunctive relief are likely to proceed in federal court. As a threshold matter, it is unclear whether state courts possess the power to enjoin federal officials.160 And even if initially filed in state court, any enforcement action against a federal government employee will likely be removed to federal court, since a federal statute, 28 U.S.C. § 1442, allows federal officers acting in the course of their employment to remove state actions to federal court, so long as they can assert a “colorable federal defense.”161
Once in federal court, states or localities may run into sovereign immunity barriers depending on the scope of the injunction sought. Generally, a plaintiff can only directly sue the United States or a federal agency—like ICE or DHS—if Congress has waived sovereign immunity.162 Here, states and localities will likely point to the waiver of sovereign immunity in the Administrative Procedure Act (APA).163 Section 702 of the APA provides that “[a]n action in” federal court “seeking relief other than money damages . . . shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.”164 Federal circuit courts have held that this language “operates as a general waiver of sovereign immunity for actions seeking nonmonetary relief against agencies”—even when the cause of action (the basis for the claim) originates outside the APA.165
While it is not entirely clear whether this waiver extends to state-law actions, recent decisions suggest that it does. In the Texas case discussed in Part II, for instance, the Fifth Circuit held that the APA’s waiver allows state common-law tort claims to proceed in federal court, holding that “[a]n action in” federal court means any action, not just federal claims.166 At least two other circuits have reached similar conclusions, allowing state-law claims to advance because of the APA’s waiver.167 But, as another explainer describes, “this application of the waiver to state tort claims remains under-litigated and contested.”168
Injunctive relief against individual federal officers may also be possible, subject to the potential intergovernmental immunity arguments discussed in Part II. For centuries, the Supreme Court has recognized that “in a proper case, relief may be given in a court of equity . . . to prevent an injurious act by a public officer.”169 Such litigation against federal officers typically involves claims that they violated federal law, but if a state law accords with the Supremacy Clause, injunctive relief might be a viable enforcement option.
Second, some state policies threaten criminal penalties. Another proposed New York statute, for example, declares that “[i]t is a contempt of the court and false imprisonment for any person to willfully violate [the statute] by executing an arrest prohibited.”170 When faced with criminal prosecution, federal officers can—and almost certainly will—invoke something called Supremacy Clause immunity.171Application of this doctrine is highly fact-specific and would arise as an individual defense once a state or locality initiates prosecution. Despite some recent statements from federal officials suggesting otherwise, there is no categorical bar to state investigations or prosecutions of federal officers, and federal government employees do not possess absolute immunity for actions taken on the job.172 Instead, as discussed in a related explainer, the key inquiry in any Supremacy Clause immunity dispute is whether the officer’s challenged actions were (a) authorized by federal law and (b) “necessary and proper” in fulfilling the official’s federal duties.173 In practice, this inquiry will overlap heavily with arguments of preemption and intergovernmental immunity discussed Part II. If an officer’s actions are unauthorized, unlawful, or unnecessary to achieve federal policy, a state prosecution poses no Supremacy Clause problem because it does not undermine the implementation of federal law. The INA’s scope is obviously integral to that inquiry.
Third, many proposals authorize injured individuals to bring a claim for money damages against federal officials. While not precluded entirely, state-law suits seeking monetary damages often must go through the procedures outlined in the Federal Torts Claims Act (FTCA).174Congress has made the FTCA the “exclusive” remedy “for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”175 Unfortunately for litigants, the FTCA comes with “significant exceptions and limitations” that can make recovery challenging: it requires individuals to make a timely application for administrative settlement before suing; precludes punitive damages; and does not allow for jury trials.176It also includes carveouts preventing recovery from certain acts, including when officers perform “discretionary functions.”177
It is not clear whether, or how, the FTCA would apply to state causes of action for damages premised on warrantless arrests or entry at sensitive locations. Much depends on drafting: Vermont’s proposal, for example, authorizes “a civil action for false imprisonment.”178 Such a claim against an ICE officer would appear to fall within the FTCA’s ambit.179One potential response for states or localities looking to avoid the FTCA’s exclusivity is to argue that, by requiring judicial warrants, these policies merely implement the Fourth Amendment. As another explainer discusses in more detail, the Westfall Act creates a carveout to the FTCA’s exclusivity for “a civil action against an employee of the Government . . . which is brought for a violation of the Constitution of the United States.”180 The scope of this carveout is uncertain and contested, but there are strong arguments based in text, history, and background principles of federalism that it allows for state-created constitutional torts against federal officials.181 There may be opportunities for states to rely on the Fourth Amendment and craft remedies for sensitive-location arrests in such a way as to test this carveout. And even for remedies that are channeled into the FTCA, the statute is not an absolute bar for recovery.
Fourth, at least one proposal, which has been introduced in Massachusetts, provides that an injured party “may apply for a writ of habeas corpus if such person has reasonable cause to believe that a civil arrest in violation of this section has occurred.”182 If enacted, it is not entirely clear how a state habeas remedy would function for those unlawfully detained by ICE. A nineteenth century Supreme Court decision—Tarble’s Case—stands for the proposition that state courts lack habeas jurisdiction over individuals in federal detention.183 Although Tarble’s reasoning has long puzzled federal courts scholars184 and some have called for its reconsideration,185 its holding is considered well-settled. Given Tarble’s status, states may wish to focus on remedies that deter arrests or make individuals whole after-the-fact, as opposed to voiding federal detention itself.
States are increasingly looking to curb warrantless civil arrests at locations like courthouses, hospitals, schools, or daycares. There is little question these policies will result in litigation, with the federal government vehemently defending its authority to enforce the INA where and how it desires. The Constitution, however, recognizes that states retain substantial authority to ensure the health, safety, and wellbeing of their residents, even in a predominantly federal arena like immigration enforcement. States have strong arguments that this authority includes requiring judicial warrants for civil arrests at sensitive locations.