State and local governments are increasingly using property law to push back on ICE operations. This report unpacks the viability of these efforts, from banning new detention centers to barring officers from staging operations on city property.
In recent months, the U.S. Department of Homeland Security (DHS) has vastly expanded Immigration and Customs Enforcement’s (ICE) presence across the country, sending thousands of officers to major cities and acquiring new facilities that extend its reach to “almost every US state and major city.”1 In response, state and local governments are increasingly turning to property law as they navigate their sometimes fraught relations with the federal government. Some municipalities have imposed moratoriums or regulations on the establishment of new detention facilities.2 Others are barring federal officers from staging operations on state or local property.3 And some have filed lawsuits to combat property-related actions like ICE building a fence across a public municipal road.4
From zoning to trespass to nuisance, property law offers states and localities a range of options for addressing federal actions, but the viability of these pathways is complex. On the one hand, regulation of both public and private property has long been a central arena of state and local power.5 On the other hand, the U.S. Constitution’s Supremacy Clause makes federal law the “supreme law of the land” and allows federal law to override state law when conflicts arise. Consequently, federal courts have long held that states cannot directly regulate the federal government or discriminate against it.6 And some federal laws directly preempt certain state actions.
This report outlines the property-related tools states and localities are using to push back on federal actions and explores the viability of those tools under longstanding federalism principles.7 The first part addresses avenues for regulating or blocking ICE detention facilities. These include regulatory and zoning powers, nuisance-based lawsuits, and less common strategies like cutting off utility service to planned detention facilities. The second part then discusses potential avenues for addressing federal encroachments on public property, such as federal officers’ use of city property for federal operations. This part covers ordinances and executive orders, state tort claims like trespass, and claims under the U.S. Constitution’s Takings Clause for repeated invasions of public property. This part also notes where similar pathways are available for private property.
The law on many of these issues is murky and contested. While many of these disputes will ultimately play out in court, this report sketches some guiding principles from existing case law. For one, the viability of state and local regulation varies depending on the type of property being regulated. State and local power is at its height when addressing use of their own property and at its weakest when regulating federally owned property. Privately owned detention facilities fall somewhere in between, with the scope of permissible regulation typically depending on the extent of interference with a federal function. Second, states and localities generally cannot discriminate against the federal government by singling out federal entities or contractors for heightened regulations. Third, where state law merely reinforces or aligns with existing requirements in federal law, like Fourth Amendment warrant requirements, it is less likely to run into Supremacy Clause hurdles. Where it instead conflicts with or acts as a ban on specific federal functions, it is more likely to be struck down. And, finally, where federal law itself provides an avenue for relief, Supremacy Clause hurdles fall away altogether because there is no intergovernmental conflict. This report delves into how these principles may manifest in the host of property-related actions playing out today.
In recent months, ICE and DHS have expanded their physical footprint considerably. According to one report, “more than 150 leases and office expansions have or would place new facilities in nearly every state, many of them in or just outside of the country’s largest metropolitan areas.”8 Meanwhile, DHS has acquired at least 10 warehouse sites this year and plans to hold as many as 7,000-10,000 people in some of the detention centers, raising serious concerns about safety, sanitation, and humane conditions.9
This mass federal expansion is setting up clashes with state and local governments. Some oppose ICE’s operations on policy grounds and are seeking to limit its footprint in their communities; others are objecting based on concerns about massive detention centers straining local infrastructure, like sewage and water systems. The methods of pushback vary: some states and localities are enacting bans or procedural hurdles for new detention facilities; some are threatening to bring public nuisance cases and other lawsuits against massive detention centers; and at least two cities have cut off or capped water service for planned detention facilities.10
The viability of these efforts to regulate or block ICE facilities is contested and turns largely on how courts apply the Supremacy Clause. Under the Supremacy Clause’s intergovernmental immunity doctrine, states and localities cannot (1) “regulate the United States directly,” or (2) “discriminate against the Federal Government or those with whom it deals.”11 Additionally, federal laws can preempt state and local laws if the two conflict or if federal law occupies an entire field.
This part provides guidance on how these federalism doctrines and other federal procedural hurdles may interact with various state and local efforts to regulate or block ICE detention facilities. The first section identifies principles for land use and other regulatory efforts. While states and localities have some leeway to regulate privately owned and operated detention facilities, they have very limited ability to regulate federally owned ones. This reality is spurring state and local officials to explore options for addressing the rise of large-scale federally owned facilities beyond direct regulation. The second section turns to one of these alternate pathways: nuisance lawsuits. States and localities can potentially bring claims under state nuisance law or under the federal common law of nuisance for harms, like pollution, arising from ICE detention facilities. Such suits will face a range of substantive and procedural hurdles but may offer an avenue for addressing some harms. The third section then briefly discusses other forms of property-related pushback, like cutting off utilities, deterring private or public property owners from selling to the federal government, or suing to enforce federal procedural rules for siting and building new facilities.
First, states and localities in recent months have enacted a series of ordinances or laws regarding detention facilities or have enforced existing requirements against ICE facilities. These measures range from permitting processes and conditions to outright bans on detention centers.
For example, Greensboro, North Carolina, amended its land use ordinance in February to require special-use permits for detention facilities and impose new limitations on where they can be located.12 Kansas City, Missouri, passed a resolution in January imposing a five-year ban on non-municipal detention facilities.13 And Howard County in Maryland passed a law in February prohibiting the issuance of county permits for privately owned detention centers.14 These are just a few of the local jurisdictions that have adopted or are considering similar measures.15
Other recent efforts have involved enforcing preexisting requirements. Leavenworth, Kansas, for example, successfully required a private contractor to go through a formal process under city regulations before it could reopen its ICE detention facility.16 And in Portland, officials have been tracking a privately owned/federally leased ICE facility’s violations of a permit condition that prohibits the facility from detaining anyone overnight or for more than 12 hours.17 From October 2024 to July 2025, records showed 25 violations of this condition,18 and the city has started a process that can lead to fines or revocation of the conditional land use approval.19
Control over land use has long been a “mainstay of local government power,”20 but the federal government is exempt from many local regulations under the intergovernmental immunity doctrine. The viability of regulations of ICE detention facilities thus hinges largely on the question of whether the facility is owned and operated by private contractors or by the federal government itself. States and localities have far more leeway to regulate the former than the latter. This section unpacks each of these in turn.
DHS has long contracted with private companies to own and/or operate its detention facilities. Two of the biggest contractors are GEO Group, which operates 19 facilities, and CoreCivic, which operates at least 10.21 Both posted record earnings in 2025 amid the Trump Administration’s increased detentions.22
States and localities have far more leeway to impose regulations on federal contractors than they can impose on the federal government itself.23 But this power is not absolute.
First, regulations cannot discriminate against federal contractors, such as by selectively banning them or imposing heightened regulations relative to other entities.24 The appropriate comparator for private ICE detention facilities is debated.25 The Ninth Circuit has compared them to other private civil detention facilities in the state, like mental health hospitals where individuals are involuntarily committed.26 In doing so, it rejected the idea that civil detention should be compared to criminal detention facilities, like state or local prisons or jails.27 Applying the Ninth Circuit’s approach, a regulation applying solely to privately owned facilities that contract with DHS would be discriminatory, whereas one applying to all privately owned civil detention facilities would not.28
The second, more complex question is whether a regulation imposed on a private contractor—that does not by its terms apply to the federal government—nevertheless amounts to a direct regulation of the federal government. This area is unsettled, with some judges concluding that such indirect regulations, by definition, do not amount to direct regulation. But the view that has largely prevailed so far instead looks at the extent to which the regulation obstructs or controls some federal function. Under this view, less burdensome regulations are more likely to survive whereas more burdensome ones—like outright bans—may be struck down.
On the less burdensome side, courts have allowed states and localities to impose health and safety regulations, minimum wage laws, and land use permitting requirements on privately operated ICE detention facilities. For example, the Ninth Circuit in 2025 held that Washington state could require a GEO Group-run ICE detention facility in Tacoma to provide “sanitary, hygienic, and safe conditions.”29 The same year, it also concluded that Washington’s Minimum Wage Act could be applied to require GEO Group to pay minimum wage to detained persons who performed work at the facility.30 Similarly, in Leavenworth, Kansas, a state court and federal court rejected CoreCivic’s effort to skip the city’s special use permitting process to reopen its previously shuttered detention facility. The federal court dismissed the case without an opinion in November 2025.31 And in February 2026, the Kansas Appeals Court ruled that the zoning laws did not violate intergovernmental immunity because the city was “attempting to enforce its generally applicable permitting procedures” and there was no evidence that the city was specifically discriminating against CoreCivic as a federal contractor.32
On the other end of the spectrum, two federal circuit courts have struck down outright statewide bans on private detention facilities.33 The challenged bans in California and New Jersey did not by their terms apply to the federal government; they instead banned private entities from operating detention facilities. But the bans would have required the federal government to buy and operate its own facilities if it wanted to detain immigrants in those states. The Ninth and Third Circuits both reasoned that imposing that limitation amounted to a direct regulation of the government and therefore violated intergovernmental immunity.34 The Ninth Circuit also concluded that California’s ban was preempted because it conflicted with federal law giving the DHS secretary the responsibility to “arrange for appropriate places of detention.”35
These two decisions, however, are not the only view. In dissents in the Ninth and Third circuit cases, Chief Judge Mary Murguia and Judge Thomas Ambro, respectively, argued that “direct” regulation does not include regulations that, by their terms, only apply to private contractors—even if the regulation clearly impacts federal contracting for detention facilities.36 They both argued that preemption is the better avenue for dealing with these types of federalism clashes. For example, Congress could have passed a law explicitly overriding New Jersey’s or California’s bans on private detention facilities. But because it had not—and because the dissenting judges concluded no other existing laws clearly preempted the states’ regulations—they argued that the laws should have survived.37 Similarly, the Seventh Circuit ruled in 2022 that an Illinois law prohibiting state and local entities from contracting for immigration detention did not amount to direct regulation of the federal government, despite its clear impact on the federal government’s ability to use publicly owned detention facilities.38 Rather, the court concluded, it “directly regulates only State and local entities and law enforcement.”39 (Notably, however, that ban did not apply to private detention centers.)
In sum, the scope of permissible state and local regulation of private detention facilities is highly contested. Regulations that amount to outright bans will face the steepest hurdles in court, while regulations that instead impose various permitting or health and safety requirements will be more likely to prevail. But neither end of this spectrum has guaranteed outcomes. And, regardless of the degree of burden, regulations cannot single out federal contractors for differential treatment without violating the non-discrimination prong of intergovernmental immunity.
In contrast, states and localities have a far more limited ability to regulate federally owned detention facilities. Under the intergovernmental immunity doctrine, state and local governments typically cannot halt, seriously impair, or control federal construction, though some regulations, like those governing the health and safety of construction workers, might still apply. The federal government’s shift to buying up warehouses and creating large-scale federally owned ICE detention facilities could therefore allow it to more easily skirt local regulations and processes. However, the exact scope of intergovernmental immunity in this realm is also contested, and courts do not always clearly explain whether they are ruling on preemption or intergovernmental immunity grounds. This section merely aims to provide an overview of several core takeaways from existing case law.
First, the most concrete principle is that states cannot completely ban federally owned facilities. Immigration detention is a specifically authorized federal function. Federal law gives the DHS Secretary responsibility to “arrange appropriate places of detention” for individuals in immigration custody40 and provides procedures for doing so.41 State laws banning civil detention facilities entirely—including federally owned ones—would therefore run afoul of intergovernmental immunity and/or preemption doctrines.
Second, courts have repeatedly struck down local efforts to apply zoning laws and building codes to federal buildings and properties.42 In particular, courts have emphasized that states and localities cannot require the federal government to get their permission to move forward with projects. For example, even where a federal statute requires compliance with certain state regulations, the U.S. Supreme Court has held that, absent clear congressional language, states cannot forbid a federal facility to operate absent state permission.43 The Court wrote in Hancock v. Train that “[b]ecause of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is ‘a clear congressional mandate,’ ‘specific congressional action’ that makes this authorization of state regulation ‘clear and unambiguous.’”44 Importantly, as discussed further below, this standard only applies to state and local regulation that actually conflicts with or acts as a prohibition on federal activities—some less intrusive regulations may survive even on federal property.45
While some federal environmental laws do require federal properties to comply with state regulations and processes,46 the federal building code law, 40 U.S.C. § 3312, does not. Instead, it requires any federal project involving “construction or alteration of a building” to comply “to the maximum extent feasible” with various nationally recognized building codes but only requires “consideration of” local or state zoning laws.47 The statute does require federal officials to cooperate with state and local officials by consulting with them, submitting plans for review, and allowing inspections.48 Federal officials also must give “due consideration” to state and local recommendations.49 But the statute does not explicitly require the federal government to ultimately comply with local zoning processes or requirements.50 There is also a waiver provision that the federal government can invoke to override the statute’s requirements if they “would adversely affect national security.”51 Other statutes regarding urban land use require a greater degree of cooperation but still only require the General Services Administrator to comply with zoning regulations “to the extent the Administrator determines is practicable.”52 These statutes thus do not provide a “clear congressional mandate” for subjecting federal buildings to local zoning permitting processes, and courts may even conclude that the building code statute preempts state and local zoning laws to the extent that such laws do not violate intergovernmental immunity independently.53
Absent a significant shift in how courts approach these issues, the most viable avenues for state and local regulation of federally owned facilities are likely (1) federal statutes that explicitly dictate compliance with state or local laws, or (2) state or local regulations that do not directly control federal operations or amount to a “prohibition” on the federal government, such as labor standards for private construction workers on federal projects or possibly regulations governing private contractors operating the facility.
For the first avenue, some federal laws do require compliance with local standards and processes. Several environmental laws require federal facilities to comply with state and local regulations on water pollution, air pollution, solid and hazardous waste, and protection of public water systems.54 However, each of these provisions grants the president the ability to exempt federal facilities from such requirements when in the “paramount interest” of the United States.55 President Trump has used this power widely, issuing more than 100 exemptions from the Clean Air Act.56 A thorough review of these environmental laws and the permissible circumstances for presidential exemptions is beyond the scope of this report, but these laws may offer a pathway for states to address detention-related issues like an overburdening of sewage systems or contamination of water supplies. For example, Pennsylvania officials have sent notices to DHS informing it that housing people in two planned facilities would violate state water regulations, which apply to the federal government under the Clean Water Act and the Safe Drinking Water Act.57 Additionally, as discussed further in section I.C, states and localities may be able to sue to enforce the procedural requirements in federal building-related laws, such as conducting environmental impact assessments or notifying urban governments about land acquisitions.58
Second, some state or local regulations that affect federal facilities may survive where they only minimally burden federal operations and are non-discriminatory. As the Supreme Court has explained, “[n]either the Supremacy Clause nor the Plenary Powers Clause bars all state regulation which may touch the activities of the Federal Government.”59 And a law is not unconstitutional “just because it indirectly increases costs for the Federal Government, so long as the law imposes those costs in a neutral, nondiscriminatory way.”60 In a 1940 case, for example, the Court upheld the application of a New York labor law requiring safety planking over steel beams during construction of a federally owned post office.61 The Court noted that “[w]here enforcement of the state law would handicap efforts to carry out the plans of the United States, the state enactment must, of course, give way.”62 But because the planking safety requirement would not significantly increase the cost of construction and applied to the construction contractor rather than the government itself, the Court concluded that it would remain in effect absent congressional action. Thus, some state regulations that do not halt or seriously impair the federal government’s plans could potentially survive, particularly where such regulations apply to the contractors building or operating the facility63 and particularly where the regulations predate the government’s purchase of the property.64 But the scope of permissible regulations on this front is unclear and contested.
Additionally, as discussed in section I.B, regulations cannot discriminate against the federal government. In other words, state or local regulations cannot disfavor the federal government relative to other similarly situated entities. This discrimination analysis may play out differently for federally owned facilities than for privately owned facilities. As discussed above, the Ninth Circuit has compared state regulation of private ICE detention facilities to state regulation of other private civil detention facilities, like a private mental health hospital where individuals may be involuntarily committed. However, for federal, publicly owned ICE facilities, courts might compare the treatment with other publicly owned civil detention facilities, like a state-owned mental health hospital with involuntary commitment, or even public criminal detention facilities, like state prisons and local jails.
Overall, existing case law suggests that state and local efforts to regulate federally owned detention facilities will often be preempted or violate the direct regulation prong of intergovernmental immunity. This reality is leading local and state governments to consider a wider range of options. The next two sections turn to additional property-related pathways states and localities are utilizing or exploring.
Some state and local governments are exploring the viability of nuisance-based lawsuits against planned detention facilities as an alternative to enacting regulations. Arizona Attorney General Kris Mayes, for example, is considering whether to bring a public nuisance lawsuit to halt the construction of a 1,500-bed ICE detention center in a warehouse in Surprise, Arizona.65
Nuisance is a longstanding property-related doctrine that provides an avenue for challenging substantial and unreasonable harm from a wide range of activities, including pollution, noise, or odors.66 While the specifics of nuisance law vary considerably between jurisdictions, states and localities could potentially pursue nuisance claims against large-scale federal detention facilities based on pollution of waterways, overburdening of sewage systems, depletion of public water supplies, increase in pollution and noise from heightened vehicle traffic, bright outdoor lighting overnight, use of tear gas outside the facility, and more.67 Indeed, “a nuisance may result from an unlimited variety of fact situations.”68 “The broad indefinite measuring rule is that a person must so control and use his property as to prevent injury to others in the rightful use of themselves and their property.”69
There are two primary pathways for bringing nuisance-based claims: state law and federal common law. State-law claims will face significant procedural and substantive hurdles, including many of the same intergovernmental immunity limits as are outlined in section I.A. In contrast, federal common law is free of many of these constraints—for instance, intergovernmental immunity is not implicated because the claim stems from federal law rather than state law. But the federal common law of nuisance has narrowed substantially in recent decades and can come with downsides, including potentially preempting state law. This section first unpacks the viability of state-law nuisance claims, then turns to federal common-law nuisance claims.
State-law nuisance claims variously stem from common law, state statutes, and local ordinances,70 and the specifics vary state to state. Private nuisances are typically “nontrespassory invasion[s] of another’s interest in the private use and enjoyment of land” and can be brought by those who have property rights in the affected land, including city or state owners.71 Public nuisances meanwhile involve conduct that interferes “with a right common to the general public,” such as public health, safety, peace, or convenience.72 Public nuisance suits have been used to address everything from obstructions of public roads to fossil fuels, tobacco, and opioids.73 Conduct at ICE facilities that impacts the public, such as pollution or noise, could similarly give rise to public nuisance claims.
In the immigration context, the primary hurdles to state-law nuisance claims stem from (1) preemption and the intergovernmental immunity doctrine and (2) federally imposed procedural hurdles for state tort claims. The preemption and intergovernmental immunity analyses will largely resemble the points outlined in section I.A. The federally imposed procedural hurdles, however, are unique to state tort-law claims and vary based on the remedy sought. Lawsuits seeking monetary damages typically need to proceed through the Federal Tort Claims Act (FTCA), which imposes significant limitations but can sometimes lead to relief. Lawsuits seeking non-monetary relief, like an injunction or declaratory judgment, can avoid the FTCA but may face hurdles from sovereign immunity. This section first briefly discusses the application of intergovernmental immunity and preemption to nuisance suits, then turns to these procedural hurdles.
First, like outright regulatory efforts, state-law nuisance claims must overcome intergovernmental immunity and preemption hurdles. Many of the principles outlined in section I.A will similarly apply to nuisance claims. In particular, where nuisance cases would effectively impose requirements for a federally owned facility that are inconsistent with federal law, courts may conclude that they are preempted or amount to an impermissible direct regulation of the federal government.74 Nuisance cases against privately owned or operated facilities are meanwhile less likely to face intergovernmental immunity hurdles.
Additionally, where a nuisance claim relates to impacts on a state or local property, it may be more likely to succeed. A federal district court in California, for example, recently allowed an individual’s nuisance claim to proceed against the federal government for creating unsafe conditions outside a postal facility stemming from a federally installed drainage culvert under the municipal public sidewalk.75 The court concluded that a municipal ordinance barring obstruction of the right-of-way did not violate intergovernmental immunity because it applied neutrally to all encroachments on public rights-of-ways and did not regulate the post office itself “but only the public sidewalk abutting” it.76 In contrast, courts have dismissed cities’ nuisance claims against dilapidated properties owned by the Department of Housing and Urban Development (HUD) on intergovernmental immunity and/or preemption grounds, ruling that municipalities could not require HUD to repair the properties or comply with local building codes.77
The viability of state-based nuisance lawsuits against federally owned facilities will therefore depend substantially on the degree of interference with a federal function, conflicts with specific federal laws, and the degree to which courts view the lawsuit as governing federal actions on federal property versus federal actions on state or local property.
The other potential hurdles for state-law nuisance claims are procedural and vary based on whether the plaintiff is seeking monetary or non-monetary relief, like an injunction or declaratory judgment.
State tort suits seeking monetary damages typically must go through the procedures outlined in the FTCA.78 Although the FTCA does sometimes lead to monetary relief for those who file claims, it includes “significant exceptions and limitations” that bar recovery in many cases.79 FTCA claims must go through an administrative process before plaintiffs can file in court, and the law provides broad exceptions, including when officers perform “discretionary functions.”80 It thus provides only a limited pathway for monetary relief, but it is not an absolute bar. For example, North Dakota successfully brought public nuisance claims under the FTCA for damage from protesters who opposed the Dakota Access Pipeline.81 A federal district court in 2025 concluded that the U.S. Army Corps of Engineers had not followed its own mandatory procedures for issuing special use permits to the protesters and that it had violated its duty to keep the protesters from causing harm.82 (The case is on appeal in the Eighth Circuit.)
Alternatively, states and localities may seek injunctive or declaratory relief instead of monetary compensation. Non-monetary claims do not fall under the FTCA,83 and they consequently face a murkier pathway, hinging on whether courts conclude that Congress has waived sovereign immunity for state tort claims.
A plaintiff can only directly sue the United States or its agencies if Congress has waived sovereign immunity.84 The FTCA, for instance, waives sovereign immunity in certain tort cases, thereby allowing plaintiffs to bring monetary damages claims directly against the United States. In non-monetary cases, the federal government’s primary waiver of sovereign immunity instead stems from the Administrative Procedure Act.85 Section 702 provides that “[a]n action in” federal court “seeking relief other than money damages and stating a claim that an agency . . . acted or failed to act . . . 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.”86 Federal circuit courts have repeatedly held that this “operates as a general waiver of sovereign immunity for actions seeking nonmonetary relief against agencies.”87
Whether this waiver applies to state-law tort actions that are brought in federal court, however, is contested. In a recent Texas case discussed further in Part II, the Fifth Circuit squarely concluded that the APA waiver does apply to state common-law tort claims in federal court, holding that “[a]n action in” federal court means any action, not just federal causes of action.88 At least two other circuits have similarly applied the APA waiver to other state-law claims.89 But this application of the waiver to state tort claims remains under-litigated and contested.90 (Such claims also cannot be brought in state court—the federal government has not waived its sovereign immunity there.91 )
Alternatively, plaintiffs can also sometimes utilize federal law pathways—particularly the APA—to address property-related harms. The Village of Broadview, for example, brought a lawsuit in October 2025 arguing that the construction of a fence across a public road outside an ICE facility constituted a trespass and a public nuisance and also violated the APA because the agency acted beyond its federal statutory authority.92 In granting the temporary restraining order, the court concluded that the village would likely succeed on the APA claims and did not reach the state tort-law claims.93
In sum, while there will be substantive and procedural complexities to navigate, there may be viable pathways for states and localities to bring state-law nuisance claims to address harm from ICE facilities.
In addition to state-law nuisance claims, states and localities may also be able to bring nuisance claims under federal common law. This pathway faces fewer procedural and intergovernmental immunity hurdles than state-law nuisance claims because the pathway stems from federal, not state law, but it does come with downsides, including a narrow scope and the possibility of preempting state law.
Federal courts have long recognized a federal common law of nuisance that allows parties to bring suits in federal court to stop pollution, particularly in interstate and intergovernmental disputes.94 The Supreme Court first recognized that pollution creates a public nuisance in 190795 and reaffirmed this doctrine in 1972.96 In the immigration context, a federal district court concluded in 1981 that the federal government’s efforts to transfer large numbers of refugees to a fort in Puerto Rico would “give rise to an enjoinable public nuisance.”97 In particular, the court noted that the wastewater processing for the high number of individuals would “inevitably exceed” the capacity of the existing plant and would “result[] in the discharge of insufficiently treated sewage” into the Caribbean Sea.98 Based on this issue and other environmental violations, the court ordered a permanent injunction against transfer of refugees to the facility.99 That decision, however, was vacated by the First Circuit after the federal government reached a consent agreement with Puerto Rico on how to operate the facility.100
The scope of the federal common law of nuisance has narrowed significantly since the 1980s. The Supreme Court has concluded that Congress has displaced much of the doctrine with the passage of federal environmental statutes, like the Clean Air Act, which set statutory standards and procedures for handling pollution.101 However, these statutes have not entirely eliminated the doctrine. In a 2011 case, the Supreme Court explicitly noted that there is still space for federal common law, including on environmental protection.102 Months later, the Seventh Circuit concluded in a case against the U.S. Army Corps of Engineers that the federal common law of nuisance extended “to the environmental and economic destruction caused by the introduction of an invasive, non-native organism into a new ecosystem”—specifically, invasive carp.103 The court endorsed the broad definition of public nuisance “as a substantial and unreasonable interference with a right common to the general public, usually affecting the public health, safety, peace, comfort, or convenience.”104 In a later ruling on the same case, the court also specifically held that federal agencies could be sued for creating a public nuisance, although it denied the claim on the merits.105
Thus, where the issues are not already covered by federal environmental statutes, states and localities may still be able to bring claims under the federal common law of nuisance.106 This pathway does not face the same procedural hurdles as state common-law claims—the APA’s broad waiver of sovereign immunity for nonmonetary cases more clearly extends to federal common law claims than to state-law claims.107 Additionally, federal common-law claims would avoid intergovernmental immunity and other federalism hurdles since they arise from federal law rather than state law. One potential downside, however, is that the existence of a federal common law pathway can work to preempt competing state tort law.108
Beyond outright regulation and nuisance-based claims, states and localities are pursuing a range of other responses to the development of large-scale ICE detention facilities in their backyards. This section provides a brief overview of three alternative pathways governments are pursuing or could pursue: cutting off utilities, creating hurdles to selling land to the federal government, and suing to enforce procedural building or environmental requirements in federal law.
First, at least two cities have cut off or capped utility services to warehouses the federal government plans to convert to large-scale ICE detention facilities. Officials in Social Circle, Georgia, put a lock on the water meter at the planned detention facility, thereby cutting off water and sewer service to the warehouse.109 The facility is slated to hold up to 7,500 to 10,000 people—an influx that would more than double the city’s current population of 5,500.110 Local officials have repeatedly sought information from the federal government about how they plan to handle water and sewer for the facility, and the city manager said the lock would remain until federal officials respond to the city’s inquiries.111 Salt Lake City officials similarly put a cap on how much water a planned facility can use, citing the city’s concerns about water access amid a drought.112 This type of approach may well survive intergovernmental immunity challenges—it is not clear that the federal government can force municipalities to double their water and sewage infrastructure to accommodate large federal buildings. If this approach singles out the federal facilities for worse treatment than other facilities, it could run afoul of intergovernmental immunity,113 but if states and localities employ a generally applicable standard—like capacity limits or bans on residential uses in industrial areas—it could potentially survive. This approach will likely be the most viable where state and local governments themselves own the utility service or infrastructure—as discussed further in section II.A, when states and localities are acting as a proprietor, they may face fewer Supremacy Clause hurdles than when they are acting as a regulator. But they may also be able to impose neutral rules governing whether and how privately owned utility companies can provide services.114
Second, states and localities may be able to create hurdles to selling land to the federal government in the first place. By keeping property in private, state, or local hands, regulators can retain much more authority over the land and its permissible uses. One option is to prevent public entities in the state from selling publicly owned land to the federal government. This type of measure would likely survive, given that states and localities have broad leeway in deciding how to dispose of their own land.115 In contrast, they likely could not ban private sales to the federal government outright—courts would likely hold that such efforts impermissibly discriminate against the federal government. But states and localities could potentially impose procedural hurdles for the sale of certain private properties, like large warehouses, requiring the owners to disclose information about the buyer, attend public hearings, or engage in other pre-sale steps. In some cases, public pressure campaigns—sometimes coupled with the enactment of local ordinances—have already deterred private developers from selling to the federal government.116 Imposing more hurdles on the pre-sale side may accomplish a similar end. Importantly, through eminent domain, the federal government retains the power to take property and provide just compensation, but this process brings its own hurdles. State and local efforts to block land acquisition may therefore slow or alter the spread of detention facilities, even if they cannot halt it entirely.
Third, states and localities may be able to sue to enforce procedural requirements in federal laws, like federal building or land use laws and the National Environmental Policy Act (NEPA).117 Maryland and New Jersey have both sued to block large detention facilities in their states, arguing that DHS has failed to comply with NEPA’s requirements to assess environmental impacts.118 In mid-April, a federal district court granted a preliminary injunction blocking the Maryland facility, concluding that the case provided "a crystal-clear example" of failure to comply with NEPA.119 Had DHS followed NEPA's requirements, the court wrote, "it likely would have found that the rapid transformation of a cargo-processing facility with four toilets and two water fountains into a temporary residence and workplace for hundreds, if not thousands, would jeopardize the health and safety of the surrounding ecosystem in myriad ways, most notably through the likely over-taxing of the sewer system."120 New Jersey’s complaint also alleges violation of the Intergovernmental Cooperation Act, which directs the federal government to consider, “[t]o the extent possible, all national, regional, State, and local viewpoints … in planning development programs and projects of the United States Government.”121 Other federal laws discussed in I.A.ii also lay out procedures for federal land acquisitions and construction that could generate legal claims.122 A full analysis of these federal laws is beyond the scope of this report, but they may offer one of the most straightforward ways to address the federally owned detention facilities that are underway.
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Overall, many state and local efforts are entering minimally charted territory and are likely to face challenges in court. As a general baseline, states and localities have broad power to regulate the use of the land and resources that they directly own. They also have leeway to regulate privately owned land and private contractors, though these efforts may face some intergovernmental immunity and preemption hurdles. They have the least flexibility to regulate federally owned and operated facilities. In some instances, properties will fall under multiple categories—such as a federally owned facility operated by a private contractor. In such cases, these general principles may interact in complex ways—for example, a state could likely still regulate the private contractor’s employment practices but likely could not require the federal property to comply with local building codes. Overall, however, the boundaries of these doctrines are highly contested, and there may be viable avenues for challenging the development of large-scale detention facilities, even when they are federally owned.
In addition to regulating ICE detention facilities, states and localities in recent months have turned to property-related pathways to respond to federal officers’ conduct. Most of these efforts seek to limit federal use of state and local public property. In Broadview, Illinois, local officials successfully sued to remove a fence ICE agents had erected outside the Chicago-area facility on the village’s public road and sidewalk.123 Officials in at least a dozen jurisdictions have passed ordinances or issued executive orders barring federal officers from using public property for federal operations.124 And, in a wide-ranging lawsuit seeking to halt the massive DHS surge in Minnesota in January, city and state officials claimed in part that DHS officers were commandeering St. Paul city property and violating existing laws governing the use of public parking lots by using them as staging locations.125 Additionally, some states and localities have explored public nuisance options for addressing federal conduct that harms public health or safety, particularly federal officers’ use of tear gas.126
Overall, states and localities have substantial leeway to regulate conduct on their own property. State and local governments routinely set rules around who can access public property and when, as well as permissible uses of public property. These regulations can typically apply to federal officers as well—the primary difficulty is enforcement. The Supremacy Clause and various federal laws impose both substantive and procedural hurdles to state and local efforts to enforce regulations against federal officers. State and local enforcement efforts will be most viable where federal officers are also violating federal law, particularly the Fourth Amendment; they will be least viable where federal officers are carrying out actions affirmatively authorized by federal law.
This part discusses three property-related avenues for regulating federal officers’ conduct on state or local property: (1) ordinances and executive orders barring ICE from certain publicly owned property, including the possibility of civil or criminal penalties for individual officers; (2) state tort-law suits, like trespass; and (3) claims under the U.S. Constitution’s Takings Clause for repeated federal intrusions on state or local property. This part also notes where similar avenues may be available for federal conduct on private property, specifically via tort and Takings claims. (States and localities are also using a range of non-property avenues to address federal officers’ conduct, including mask bans, criminal investigations, and civil damages lawsuits, all discussed in other reports.127 )
More than a dozen cities and counties in recent months have enacted policies barring federal officials from using public property for ICE operations. These policies vary in scope and form. Chicago’s mayor, for example, issued an executive order in October 2025 prohibiting the use of city-owned lots and garages for immigration staging, processing, or operations.128 Similarly, the San Francisco Board of Supervisors enacted an ordinance in February 2026 barring the use of all city property for immigration enforcement and providing a mechanism for the city attorney to sue any person or entity who violates the ordinance.129 These efforts almost certainly fall within the proprietary power states and localities exercise over their own property, but they may face some hurdles at the enforcement stage.
First, where state and local governments are acting as the proprietor of their own property, rather than a regulator of others’ property, they are less likely to run into intergovernmental immunity issues.130 For example, a federal district court in New York recently upheld a state law barring civil arrests in courthouses absent a judicial warrant, in part because “simply defining, as a proprietor, what activities are not permissible in state-owned facilities … does not run afoul of the intergovernmental immunity doctrine.”131 State and local governments routinely set open hours for public parks or buildings, designate buildings or office areas that are not open to the public, or have laws limiting who can enter school grounds.132 Applying these rules and other immigration-specific ones to federal officers likely falls squarely within state and local power. This idea is reinforced by the anticommandeering doctrine, which holds that the federal government cannot require states to assist with federal efforts like immigration enforcement.133 As noted above, St. Paul has already brought an anticommandeering claim against DHS, challenging officers’ use of its parking lots in ways that violate local ordinances.134
The intergovernmental immunity doctrine would likely still constrain regulations governing federal officers’ ability to access properties that are otherwise publicly accessible. States and localities likely could not treat federal officials worse than the general public—for example, by barring ICE officers from driving on public roads.135 But states and localities can likely prohibit federal officers from using public property in ways that deviate from generally allowed public uses—for example, where ordinances specify that a city parking lot can only be used for visiting the adjacent park, the city likely does not need to allow ICE to use it as a staging site.136 Additionally, as in the New York courthouse case, states and localities can typically pass regulations governing specific conduct on state and local property, such as by banning the use of tear gas. (A related report explores this power in more depth, specifically looking at states’ ability to limit immigration enforcement in publicly owned sensitive locations, like schools or courthouses, as well as privately owned ones, like hospitals.)
Although many of these regulations are valid exercises of local or state power, they may face hurdles at the enforcement stage, depending on the facts of the violation and the method of enforcement. First, where states or localities seek to enforce criminal laws governing access to property, such as criminal trespass laws, federal officers could potentially claim Supremacy Clause immunity.137 As discussed in a related report, federal officers can secure immunity from state prosecutions where their actions were necessary and proper in carrying out lawful federal duties.138 The application of this doctrine is highly fact-specific and would arise once a state or locality brings a prosecution—federal officers do not have absolute immunity from state prosecutions.
Similarly, where states or localities seek to impose civil penalties like fines, federal officers might also claim some form of immunity, though there is limited case law on whether Supremacy Clause immunity or intergovernmental immunity would properly apply.139 As the U.S. Supreme Court explained in Johnson v. Maryland, “[o]f course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment,” but “even the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a [federal officer] acting under and in pursuance of the laws of the United States.”140 The court held that while laws “regulating the mode of turning at the corners of streets” could apply to federal officers, a state could not require a postal worker to obtain a state driver’s license and pay a fee.141 The application of fines to federal officers’ conduct on state or local property will therefore likely hinge on whether the law impedes lawful, federally authorized conduct.
With either civil or criminal penalties, federal officers will likely have immunity when their actions are specifically authorized by federal law—such as a federal statute giving Border Patrol agents the ability to access private lands within 25 miles of the border in order to prevent illegal entries.142 In contrast, fines or prosecutions are most viable where federal officers are also violating federal law or the U.S. Constitution—such as by entering a private area of a city office building without a judicial warrant in violation of the Fourth Amendment.
Lastly, separate from any direct efforts to enforce the regulations discussed in this section, the existence of such regulations is relevant for determining whether or not the federal officers have permission to be on the property, which factors into the state tort-law claims and federal Takings claims discussed below.
In tandem with regulations, state tort law offers another avenue for addressing federal conduct on state or local property. Torts like trespass and nuisance are typically used to recover monetarily from a defendant, but they can also be used to seek non-monetary relief, like injunctions or declaratory judgments.
In some instances, state tort suits may offer a mechanism for enforcing the regulations outlined in section II.A—for example, where federal officers are repeatedly disregarding limitations on their use of public property, the intrusions might amount to a trespass. In other instances, state tort suits may offer an independent pathway for addressing federal conduct—for example, nuisance claims might be available for use of tear gas. Additionally, private individuals may be able to bring similar claims regarding intrusions or harm to private property.
This part provides an overview of property-related torts as applied to federal conduct, then turns to limitations and hurdles. While some of these parallel the hurdles discussed for facility-related nuisance suits in section I.B.ii, state tort claims involving conduct on state or local property (rather than federal property) may face fewer obstacles to relief.
The primary property-related torts are trespass, trespass to chattels, conversion, and nuisance. Trespass generally occurs when someone intentionally enters another’s land without their consent and without some other privileged reason for being there. Trespass to chattels and conversion address harm to personal property instead of intrusions to land. And nuisance, discussed above in section I.B, applies to a wide range of harms to public health, safety, or convenience, potentially including the use of tear gas.143 This section unpacks each of these torts in turn.
First, trespass claims might be available where officers enter private homes or non-public areas of publicly owned property without a judicially signed warrant. Law enforcement officers are typically insulated from trespass claims when they enter property in a way that accords with the Fourth Amendment.144 However, where officers violate the Fourth Amendment, they can potentially face civil trespass claims or criminal trespass charges. Courts have found trespass claims can proceed where law enforcement officers enter property with an invalid warrant, enter unlawfully without a warrant, or unnecessarily damage the property while executing a valid warrant.145
In carrying out immigration arrests, ICE officers routinely use administrative warrants, which are issued by immigration authorities, instead of judicial warrants, which are issued by judges. It has long been understood—and DHS has historically conceded—that these administrative warrants are not sufficient to meet the Fourth Amendment’s warrant requirements and therefore do not authorize ICE to enter non-public areas to make arrests.146 In a recently publicized memo from May 2025, however, DHS reversed course and claimed that officers do have the authority to enter homes with only an administrative warrant—a policy that drew sharp blowback.147 Assuming courts continue to side with the prevailing view that this practice violates the Fourth Amendment,148 trespass claims would be one avenue for addressing these unconstitutional entries, both on private property and on private areas of public property, such as areas of city offices where the public is not allowed to enter.
Additionally, trespass claims could arise where federal officers are on public property in a way that violates rules governing use of that property—for example, by erecting a fence on a public road, as in the Broadview case,149 or using a city parking lot as a staging area for operations where the only lawful uses of the lot are parking to visit the adjacent park or walking to or from vehicles, as in the St. Paul case.150
Trespass to chattels and conversion can meanwhile arise where federal officers damage, interfere with, or take personal property without a lawful justification. Conversion typically applies to more extreme interference like taking or completely destroying property, and trespass to chattels applies to acts with lesser interference or damage.151 Under the Biden Administration, for example, Texas brought conversion and trespass-to-chattels claims against DHS based on Border Patrol agents cutting concertina wire fence that Texas had placed along the Mexico border.152 Balancing the federal immigration enforcement requirements with the state’s property interests, the Fifth Circuit ultimately granted an injunction barring Border Patrol from cutting the wire where it already has “the necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes.”153 Thus, where federal officers damage or take state and local property without a lawful federal authorization, they could face state tort-law claims.
Similar claims might also be available regarding damage to or confiscation of private property, such as where a federal officer smashes someone’s car windows or takes and destroys or sells someone’s cell phone without lawful justification.154 (Federal law may also offer options for seeking the return of property. In particular, Federal Rules of Criminal Procedure 41(g) provides that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return” by filing “in the district where the property was seized.”155 This procedure can be used to obtain property wrongly seized by ICE officers.156 )
Last, nuisance claims may be available to address harms to public rights, like health and safety, or to private property interests. Section II.B above discusses nuisance in more depth as it relates to harms flowing from ICE detention facilities. But nuisance claims may also be available to address other conduct, such as federal officers using tear gas and other chemical irritants in public parks.157 And private property owners may also be able to bring nuisance claims. In Broadview, Illinois, for example, the cabinet manufacturing company located next to the ICE facility has dealt with tear gas entering the plant, workers being hit by pepper balls, and intrusion of other munitions onto its property amid protests outside the Chicago-area facility.158 Plumes of tear gas have similarly infiltrated neighboring homes and yards, irritating children with asthma or preventing families from eating outdoors.159 These property owners could potentially bring private nuisance claims against DHS.
State-law tort claims regarding federal conduct will face substantive hurdles from federal law and the intergovernmental immunity doctrine and procedural hurdles from the FTCA and sovereign immunity. While these hurdles largely parallel those discussed in section I.B.i regarding nuisance claims related to detention facilities, there are some key differences here. For one, state and local governments are less likely to run into intergovernmental immunity concerns where they are addressing conduct on their own property (versus federally owned property). And on the procedural front, trespass claims will often raise Fourth Amendment issues as well, potentially opening another pathway for seeking monetary damages.
First, intergovernmental immunity is less likely to come into play where states and localities are bringing tort claims to address conduct on their own property. In the razor-wire case discussed above, the Fifth Circuit found that because Texas sought “to enforce generally applicable state tort laws against trespass and conversion” and was “acting as a proprietor, not a regulator,” the suit did not run afoul of intergovernmental immunity.160 The case also suggested some willingness among U.S. Supreme Court justices to entertain this type of claim—the Court vacated the initial injunction pending appeal in the case after a woman and her two children drowned in an area blocked off by razor wire,161 but Justices Thomas, Alito, Gorsuch, and Kavanaugh would have allowed the injunction to remain in place.162 The Fifth Circuit’s subsequent reinstatement of an injunction after further proceedings then went unchallenged before the Court. Overall, given the propriety interests involved, tort suits that address harms to state or local property may be more likely to prevail than state-tort suits aimed at federal detention facilities.
That said, federal law will sometimes preempt specific types of tort claims or narrow the scope of relief. In the Texas case, for example, “[b]oth the Border Patrol and Texas agree[d] that the c-wire must be cut in the event of a medical emergency or to enforce federal immigration law.”163 The injunction thus only barred cutting the razor wire where Border Patrol already has “the necessary access to both sides of Texas’s c-wire for immigration law enforcement and emergency purposes.”164 Similarly, a federal statute discussed in the case gives Border Patrol agents access to private lands to patrol within 25 miles of the border to prevent illegal entries.165 Where officers comply with this statute (and the Fourth Amendment, which generally does not extend to “open fields”166 ), they cannot be held liable for trespass, even if state law would authorize such a claim. But the federal statute also provides that agents are not allowed to access dwellings. If agents “were nonetheless barging into dwellings in violation of the statute,” the Fifth Circuit wrote, the Supremacy Clause “of course” would not “prevent a homeowner’s trespass suit.”167 Thus, state-law tort claims will likely only be viable where federal law does not independently authorize the intrusion or other harm to property.168
On the procedural front, meanwhile, state tort-law claims for monetary damages will typically proceed via the FTCA,169 and claims for non-monetary relief will have to clear federal sovereign immunity hurdles or proceed via the APA, as discussed in section I.B.ii. In the context of trespass and property damage claims, however, plaintiffs are typically also making a constitutional claim: that the officer violated the Fourth Amendment. This may open additional avenues for monetary claims. The Westfall Act, which generally makes the FTCA the exclusive pathway for tort claims against federal officers, includes a carveout for actions “brought for a violation of the Constitution of the United States.”170 As discussed in another report, this leaves open the option for state-created causes of action for federal officials who violate constitutional rights.171 Under these so-called “converse-1983” laws, which already exist in some states and are being introduced elsewhere,172 plaintiffs could sue to recover monetary damages for harm stemming from a Fourth Amendment search-and-seizure violation instead of pursuing a trespass claim for the same harm.173
Overall, states, localities, and individuals may be able to pursue both monetary and non-monetary relief related to federal intrusions on or harm to public property. While federal law presents several hurdles to state tort-law claims, it does not entirely close the door on relief.
Finally, some legal scholars have suggested that the U.S. Constitution’s Takings Clause could offer an alternative pathway for combatting federal conduct on state and local property (or, potentially, private property). In particular, the Supreme Court recently expanded Takings doctrine in ways that could potentially open the door for challenging federal officers’ repeated intrusions on public or private property.
The Takings Clause in the U.S. Constitution provides: “nor shall private property be taken for public use, without just compensation.”174 The most straightforward application of this clause involves situations where a federal, state, or local government physically takes private land for some public purpose, such as by converting private land into a public road.175 In such cases, the government must provide “just compensation” (typically fair market value) to the owner. The same principle applies when the federal government takes state or local public property—courts simply treat state and local governments like private property owners.176
Courts also recognize “regulatory takings,” whereby regulations that “‘go[] too far’ in extinguishing property rights can trigger the compensation requirement,” even if they do not directly appropriate physical property.177 These cases are typically difficult to win. Where the regulations (1) “compel the property owner to suffer a physical ‘invasion’ of his property” , 178 (in a famous case, a TV cable box on an apartment building179 ) or (2) “den[y] all economically beneficial or productive use of land,”180 courts may find a per se regulatory taking. In other regulatory cases, courts apply a balancing test that typically favors the government.181
In 2021, the U.S. Supreme Court in Cedar Point Nursery v. Hassid182 594 U.S. 139 (2021). loosened the standard for treating regulations as per se takings. Blurring the line between regulatory and physical takings,183 the Court concluded that a California regulation allowing union organizers to enter private land to talk to agricultural workers on a limited basis constituted a physical appropriation and was therefore a per se taking.184
As Professors Aziz Huq and Zachary Clopton have argued, this expansion of Takings doctrine provides a potential avenue for states “to resist federal access to state and local buildings.”185 As they write, “[u]nder Cedar Point’s ruling that ‘a physical appropriation is a taking whether it is permanent or temporary,’ the federal government’s ‘access’ demand to state and local buildings—be they schools or courthouses or prisons—is a per se taking under the Fifth Amendment.”186 States could therefore sue for compensation under the Takings Clause or could potentially seek to enjoin these federal intrusions.187
The exact limits of Cedar Point and its exceptions have not yet been fully fleshed out,188 so the viability of this type of claim remains unclear. If officers do have a valid judicial warrant and are acting in accordance with the Fourth Amendment, they can certainly enter property under Cedar Point’s law enforcement exception without effecting a taking.189 Conversely, if officers do not have a valid judicial warrant and enter unlawfully, then courts might instead characterize it as an “isolated physical invasion” more properly analyzed under trespass than Takings doctrine.190 But Cedar Point’s exception for trespass notably only applies to “[i]solated physical invasions, not undertaken pursuant to a granted right of access.”191Where federal officers repeatedly invade a property without a warrant or where the federal government is purporting to grant a right of access to federal officers, access-based takings claims may be more viable.192 And federal officials do seem to be claiming a broad right of access—in the May 2025 memo, discussed above, DHS claimed it has the authority to enter private areas with only an administrative warrant; and some federal officials are claiming a broad right to access public property, like courthouses, to conduct civil arrests.193 Additionally, as noted above, a federal statute allows Border Patrol agents to access private lands within 25 miles of the border in order to prevent illegal entries.194 These broader policies or repeated entries could give rise to viable Takings claims under Cedar Point, both for publicly owned and privately owned property.
Procedurally, Takings claims play out differently than many constitutional cases. Claims for “just compensation” above $10,000 must be filed in the U.S. Court of Federal Claims, an Article I court that generally has no authority to grant equitable or declaratory relief.195 If plaintiffs are instead seeking a declaratory judgment or an injunction, they have to file those claims in the regular, Article III federal courts.196
Neither sovereign immunity nor the Supremacy Clause poses a significant hurdle to federal Takings claims. The APA waives sovereign immunity for non-monetary claims,197 and the Tucker Act waives sovereign immunity for monetary claims in the Court of Federal Claims.198 Additionally, because the Takings Clause is a federal constitutional provision, it does not face Supremacy Clause roadblocks, such as intergovernmental immunity or preemption. Thus, the primary limitations on relief stem from Takings doctrine itself rather than any outside immunity.
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Overall, states and localities have a range of options for regulating conduct on and access to their own property, and many of these efforts will face fewer legal hurdles than efforts to regulate federally owned property, like new ICE detention facilities. While federal laws and procedures may impose some enforcement obstacles, states and localities have successfully brought cases to address federal immigration-related actions that unduly infringe on or harm public property. And many similar avenues are available for private property owners, particularly where federal officers are entering private property without a judicial warrant.
In the coming months, the complex fight over the federal government’s use of property for ICE operations and detention centers will continue to play out, both in and out of courts. The federal government and its contractors will likely seek a maximalist view of federal supremacy, while states and localities will likely continue to seek avenues for pushback, exerting regulatory or proprietary control where they can.
Under existing case law, states and localities have the most power when they are regulating conduct on or access to their own property. They also have quite a bit of power to regulate private contractors and privately owned properties, as long as they do not discriminate based on the contractor’s status as a federal contractor or impose regulations that directly conflict with federal law. Some especially stringent regulations—like outright bans on private detention facilities—may run into Supremacy Clause hurdles, but this analysis is contested. States and localities have the least power when it comes to regulating federally owned facilities, but some state and local regulation may survive, and federal environmental and nuisance laws offer additional legal options. Beyond regulation and lawsuits, states and localities may also be able to utilize self-help measures to address concerns about large detention facilities, such as withholding utility services.
As these disputes continue to play out, the boundaries of these murky doctrines may shift. But the bottom line is that, while the Supremacy Clause and federal laws place important constraints on what states and localities can do, these public actors—as well as private actors—still have some avenues for ensuring the federal government and its contractors are not overreaching.