Brazen ICE Arrests Impede Justice – The New Republic

Earlier this month, two men in street clothes rapidly approached defense attorney Mark
Wester and his client in the hallway of the Marlborough District Court. After
confirming the defendant’s identity, they flashed their Immigration and Customs
Enforcement badges and told Wester that they had come to Marlborough, a town in
central Massachusetts, to arrest his client.

“Is
that okay?”

Wester
stared back.“No,” he said. “It is
not
okay.”

ICE
is, historically speaking, not okay. Its controversial, sixteen-year history of
enforcing non-criminal immigration violations is filled with stories any
American of conscience should find troubling. The agency has been responsible
for warrantless arrests, prolonged detentions in miserable conditions, and
traumatic family separations—all carried out, especially in recent years, with
little mercy or accountability. As the 2020 election approaches, public opinion
has turned so harshly against ICE that a plurality of Democratic voters now
support
abolishing it entirely.

Immigration
authorities were abducting non-citizens from courthouse steps well before Trump
took office. But arrests like the one in Marlborough have become such a core
component of Trump’s mass deportation campaign that it’s now a serious problem
for state law enforcement. The Immigrant Defense Project estimates that ICE
arrests inside New York state courthouses 
increased
by at least 1,700 percent between 2016 and 2018. Similar spikes have been
reported around the U.S., especially in “sanctuary” jurisdictions that
have asserted their sovereignty to safeguard the integrity of their local
justice systems.

Federal
immigration authorities are sending a message when they raid state courthouses,
and it is not a friendly one. This practice is a painful affront to victims and
witnesses who come to our courts seeking justice, and a statement of smirking
disrespect to the local police, prosecutors, and judges who are sworn to
administer it. ICE’s courthouse arrests also badly complicate the lives and
futures of non-citizens. Even minor, unresolved misdemeanor charges can render
individual immigrants permanently ineligible for visas to return to the U.S.,
while even the faintest rumor of ICE enforcement can cause ripples of fear and
panic to spread throughout their communities.

ICE’s
dramatic intrusion into the business of the Marlborough District Court came
within days of the filing of an unprecedented joint legal action against the
agency by prosecutors from two of the state’s largest counties, together with public
defenders at the Massachusetts Committee for Public Counsel Services. These courtroom
opponents joined forces against the federal government to  allege that the dramatic rise in courthouse
arrests carried out under Trump had “paralyzed the effective administration of
justice” throughout greater Boston and beyond. They contend, correctly, that
federal interference with state criminal matters is a violation of the Tenth
Amendment and the state sovereignty of the Commonwealth of Massachusetts.

This
historic lawsuit was announced days after Massachusetts federal prosecutors
criminally indicted a sitting state judge simply for keeping order in her own
courthouse. The case involves Judge Shelley Joseph, who acted completely within
her authority after prosecutors dropped a pending charge against a defendant in
state custody. Joseph had been notified ICE was on site to arrest this
defendant so, after confirming dismissal of the charge, she instructed a court
officer to escort the defendant downstairs to the lockup so he could meet with
his attorney and be processed for release. Joseph’s routine order has almost
certainly already cost her a judgeship; her law license and possibly even her
freedom are now also on the line. (One important point, which has been
overlooked in the media frenzy surrounding this indictment: If ICE agents had
followed their own internal guidelines—specifically designed to minimize public
disturbance in the course of arrests—they could have almost certainly apprehended
the defendant outside the courthouse rather than in the lobby.)

The charges
against Judge Joseph are shamelessly political, completely unprecedented in
American legal history, and the implications should be of grave concern to
everyone. Yet the law-and-order-loving pundits on conservative media celebrated
the charges, and #MAGA Twitter exploded with calls for Joseph’s execution.

A
student of American political science transported from, say, 20 years ago might
fairly wonder why the “small government conservatives” and defenders of
“states’ rights” traditionally associated with the modern Republican
Party have not rushed to the defense of Judge Joseph and local law enforcement
in the face of plain federal overreach. That not a single prominent Republican
has done so is more proof that the party of Trump is not just morally unmoored,
but also philosophically adrift.

In Printz v. U.S., the Supreme Court examined a very different allegation of
federal overreach. The case was brought by local sheriffs who opposed the Brady
Handgun Violence Prevention Act’s requirement that they perform background
checks on firearm purchases. Justice Scalia’s 1997 opinion striking the background
check provision drew heavily from the Federalist Papers and the Tenth Amendment.
The federal government, Scalia held, had no lawful right to force local
authorities to do
anything in its
service and such commands
are “fundamentally incompatible with our constitutional system of dual
sovereignty.”

To
review: Forcing local law enforcement to perform a brief background check
before allowing someone within their jurisdiction to take possession of a gun
is an egregious violation of dual sovereignty. But today, under Trump’s
immigration enforcement policy, requiring the same officers to participate in
the warrantless arrest and costly detention of non-citizens apparently is not.

There
is no guiding political philosophy here, and the country should by now be well
beyond any pretense that there might be one. Today’s “small government”
conservatives still warn against the tyranny of federal “jackboots,” but have
no problem seeing them deployed to the necks of nonwhite immigrants.

Our
time-traveling poli-sci student might fairly believe the nation has crossed
into an alternate political universe in which Gadsden-flag-waving
“conservatives” are defending Big Government’s right to interfere with local
law enforcement, while liberals (and even some leftists) stand with local cops
and prosecutors in defense of their right to investigate and prosecute
non-citizens. But this is actually nothing new. “States’ rights,” “state
sovereignty,” and the Tenth Amendment have historically been most popular with
those
opposing civil liberties. They
have been tools of convenience in the defense of racial segregation, abortion
restrictions, and denial of full marriage equality for same-sex couples. It has
never been more apparent that their utility to the nativist right ends where
true liberation begins.