Federalism and the State Police Power: Why Immigration and Customs Enforcement Must Stay Away from State Courthouses

Authors

George Bach, University of New Mexico - School of LawFollow

Document Type

Article

Publication Date

Spring 2018

Abstract

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the victim’s immigration status by the alleged abuser.

The direct effect of the presence of federal ICE agents at state and local courthouses is to undermine the ability of state and municipalities to enforce their domestic violence laws. This interferes with the states’ sovereignty and the exercise of the police power, critical in our federalism system. This interference runs afoul of the limits placed on federal action articulated in United States Supreme Court cases that have revived protection of the state police powers. United States v. Lopez and United States v. Morrison and, to a lesser extent other Tenth Amendment cases, have set forth a reinvigorated sense of the states’ role in our federalism. Accordingly, under the revived notion of state sovereignty and police power in our federalism structure, ICE should be kept away from the state and local courthouses.

Publication Title

Willamette Law Review

Volume

54

Issue

2

First Page

323

Last Page

334

Keywords

Immigration, Federalism, Domestic Violence

Recommended Citation

George Bach, Federalism and the State Police Power: Why Immigration and Customs Enforcement Must Stay Away from State Courthouses, 54 Willamette Law Review 323 (2018).
Available at: https://digitalrepository.unm.edu/law_facultyscholarship/752