Commentary

From Portland to Minneapolis, aggressive actions by Immigration and Customs Enforcement (ICE) agents against citizens and noncitizens alike have been well documented. Many of these encounters raise grave constitutional concerns. Yet it may surprise—and alarm—many to learn that there is often no viable path to sue federal officers if they violate your constitutional rights, even egregiously.

Horizontal, interbranch competition is only one species of checks and balances. Especially in moments of politically consolidated federal power, the Constitution’s structure offers another, potentially more meaningful safeguard: the states.

Senior Editor Anna Bower spoke with Carolyn Shapiro, co-director of Chicago-Kent College of Law's Institute on the Supreme Court, and Bryna Godar, a Staff Attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. The discussion covered the state of Minnesota’s jurisdiction to criminally investigate Jonathan Ross, the ICE official who reportedly shot and killed Renee Nicole Good on Jan. 7. The conversation also covered obstacles state prosecutors might face in pursuing a potential prosecution and the likelihood that Ross could raise what’s known as "Supremacy Clause immunity."

States don’t often prosecute federal officers, but they can. In this week’s episode, we talk to Bryna Godar, an attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. She studies the power that states have to hold federal officers such as Ross accountable.

Shortly after a U.S. Immigration and Customs Enforcement officer shot and killed a woman in Minneapolis on Wednesday, city leaders began looking into whether the officer had violated state criminal law. States have a long history of prosecuting federal officials for allegedly using excessive force on the job. And when federal courts agree that the force may not have been legally justified, they have allowed the state prosecution to proceed.

As the federal government carries out aggressive immigration raids in major cities across the U.S., state officials are facing off with the federal government over a centuries-old question: When can states prosecute federal officials for violating state criminal law?

Property owners have challenged programs meant to assist vulnerable populations, alleging they are unconstitutional takings of private property for public use.

As concerns mount about the conduct of federal agents, the possible solution of state-created damages remedies for federal constitutional violations is gaining steam in states. It’s what Professor Akhil Amar once dubbed “converse § 1983.” As the State Democracy Research Initiative details, the core idea is simple: States can enact (or amend existing) civil rights statutes that allow damages suits against any person — including a federal officer — who violates federal constitutional rights. While there are some unanswered questions and likely hurdles, the historical pedigree and legal footing for such remedies is perhaps stronger than some skeptics might assume.

On September 18th, SDRI co-faculty directors Miriam Seifter and Rob Yablon participated in a panel discussing key laws governing federal vs. state powers, the changing scope of executive powers, and best practices for reporting on political issues like these at the state and local levels.

The Wisconsin Supreme Court last month struck several powers held by state legislative committees over executive branch actions, a landmark decision that will have broad implications and bring Wisconsin more in line with other states.