On August 5, the State Democracy Research Initiative’s faculty co-directors, Miriam Seifter and Rob Yablon, filed an amicus brief with 5 other legal scholars in United States v. New York et al., a case before the U.S. Court of Appeals for the Second Circuit. The appeal concerns whether the Supremacy Clause of the U.S. Constitution bars three provisions of New York’s Driver’s License Access and Privacy Act that seek to limit disclosure of sensitive state data for immigration enforcement purposes. The federal government sued, arguing that New York’s policies were preempted by federal law and violated the judge-made doctrine of “intergovernmental immunity.” DOJ has made similar arguments in a range of recent cases.
On August 5, the State Democracy Research Initiative’s faculty co-directors, Miriam Seifter and Rob Yablon, filed an amicus brief with 5 other legal scholars in United States v. New York et al., a case before the U.S. Court of Appeals for the Second Circuit. The appeal concerns whether the Supremacy Clause of the U.S. Constitution bars three provisions of New York’s Driver’s License Access and Privacy Act that seek to limit disclosure of sensitive state data for immigration enforcement purposes. The federal government sued, arguing that New York’s policies were preempted by federal law and violated the judge-made doctrine of “intergovernmental immunity.” DOJ has made similar arguments in a range of recent cases.
The brief situates intergovernmental immunity within the broader context of federalism doctrines and explains that, contrary to that the federal government’s arguments, it has a relatively narrow role to play. Applying the doctrine to state laws that dictate the proper use of the state’s own data and resources, the brief argues, would effectively force states to subsidize federal operations—a result inconsistent with the Tenth Amendment and the Constitution’s federal structure. The brief also highlights how using the blunt instrument of intergovernmental immunity to bar states from imposing conditions on federal access to state resources risks upending the established landscape of state-federal negotiations.
The other legal scholars who joined the brief are Jessica Bulman-Pozen (Columbia Law School), Bridget Fahey (University of Chicago Law School), Aziz Huq (University of Chicago Law School), Gillian Metzger (Columbia Law School), and Carolyn Shapiro (Chicago-Kent College of Law). This amicus brief follows on from another recent amicus brief filed in the Second Circuit, explaining why “intergovernmental immunity” allows states to protect their own sovereign infrastructure, like courts.