When addressing President Donald Trump’s immigration policy, Gov. Wes Moore said that Maryland officials will follow the U.S. Constitution.
But does the Constitution limit the actions that state and local law enforcement officials can take regarding Immigration and Customs Enforcement (ICE) policy?
In short, yes.
Mark Graber, a professor at the University of Maryland’s Francis King Carey School of Law, pointed to the 1996 U.S. Supreme Court decision in Printz v. United States. In that case, justices set the precedent that the Necessary and Proper Clause of the Constitution does not give the federal government the authority to force state officials to carry out federal programs.
The Necessary and Proper Clause gives Congress the ability to assume powers that are not in the Constitution, but are required to carry out the authority it grants to the federal government.
“The federal government may not require any state executive or legislative official to implement a federal program,” Graber said.
In a joint statement issued last week with his fellow attorneys general from California, New York, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Rhode Island, New Mexico, and Vermont, Maryland Attorney General Anthony Brown affirmed that it is unconstitutional for the federal government to commandeer state and local law enforcement officials for immigration enforcement.
“This balance of power between the federal government and state governments is a touchstone of our American system of federalism,” they said. “Despite what he may say to the contrary, the President cannot unilaterally re-write the Constitution.”
Moore on Monday said that his administration will “make sure that our local jurisdictions are following the Constitution” regarding Trump’s executive order that ICE arrest and detain people who have entered the country illegally.
Current state law prohibits Maryland’s 24 jurisdictions from entering into agreements with ICE to detain immigrants on its behalf. Sen. Will Smith, a Democrat from Montgomery County, said Tuesday that he plans to introduce legislation this session to limit Maryland law enforcement’s ability to notify ICE through the agency’s 287(g) program after someone has been arrested.
According to Graber, “states may not aggressively interfere” with federal government policies, he said, but they also are not compelled to aid federal officials in carrying out those policies or participate in their enforcement, themselves.
“The states do not have obligations to implement federal policy, and, if they believe a federal policy is unconstitutional, they can challenge that policy in court to the extent that it interferes with the state,” he said.
Trump issued several executive orders altering U.S. immigration policy shortly after he took power last week. Brown has already challenged one.
On the president’s second day in office, Brown and 18 attorneys general filed a brief challenging an executive order to end birthright citizenship, alleging that it is unconstitutional.
“It is a reflection of our country’s ideals, a belief that every baby born on U.S. soil is a member of our great nation and deserves to play a part in its future,” Brown said of birthright citizenship. “Ending birthright citizenship is un-American, and our Office will vigorously challenge this blatantly unconstitutional decision in court.”
A Justice Department memo last week warned state and local officials they could face prosecution if they don’t aid enforcement efforts.
“Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands or requests,” the memo said.
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