Key to Holding #ICE Agents Accountable
A proposal in a 1987 #law review article by a young law professor named Akhil Reed Amar could address a gap that makes it all but impossible to sue #federal officials for violating the #Constitution.
“I think it was a good idea then,” he said last week, “and it’s only taken more than half a lifetime for people to actually read the thing.”
#Trump #StateSponsoredTerrorism #UseOfForce #PoliceBrutality #murder #CivilRights #ICE #CBP
https://www.nytimes.com/2026/02/02/us/ice-lawsuits-states.html?smid=nytcore-ios-share
The article has, in truth, been quite influential. It has been cited, for instance, in 7 #SCOTUS opinions. But it was also 96 pages long & touched on many issues.
“I was actually trying to do a bunch of different things — & get tenure,” Professor Amar, now a leading constitutional scholar at Yale Law School, said of the article, “Of #Sovereignty & #Federalism.”
#Trump #StateSponsoredTerrorism #law #UseOfForce #Constitution #StatesRights #CivilRights #authoritarianism #autocracy #ICE #CBP
His central point for present purposes was that #state #legislatures can authorize lawsuits against #federal officials for violating the #Constitution. If that is right, such #StateLaws would close an odd gap in #FederalLaw that—broadly speaking—allows such suits against state & local officials, like police officers, but not against #federal ones, like #ICE agents.
#Trump #StateSponsoredTerrorism #law #UseOfForce #Constitution #StatesRights #CivilRights #authoritarianism #autocracy #ICE #CBP
#Congress authorized the first kind of lawsuit in an 1871 #law that most people call §1983. But Congress has not enacted #legislation allowing suits against #federal ofcls for violating the #Constitution.
“It’s an enormous problem that federal officials are in some ways the hardest people to hold accountable for violating people’s constitutional rights, even harder than state & local officials,” said Carolyn Shapiro, a prof at Chicago-Kent College of Law & a fmr solicitor general of Illinois.
#SCOTUS tried to address the gap in 1971 in Bivens v. Six Unknown Named Agents, allowing the victim of an #unconstitutional search by #federal agents to sue them. But the court has essentially abandoned that approach, saying instead that #Congress must act if suits against federal ofcls are to be allowed.
[I personally don’t see this SCOTUS dealing with the issue given their stance on expansive #ExecutivePower]
#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP
That is where #state lawmakers come in, Professor Amar said.
“Sometimes the #federal government will misbehave,” he said, “& you can’t count on #Congress always to rein the federal government in.”
His article drew on 2 principles often associated with #conservatives: #federalism & #originalism.
“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.
#Trump #law #UseOfForce #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP
some #states — including #California, #Maine, #Massachusetts & #NewJersey — have enacted laws along the lines that Prof Amar proposed, though they are largely untested, & #Illinois recently adopted one tailored to address the conduct of #ICE agents.
https://ilga.gov/documents/legislation/104/HB/PDF/10400HB1312enr.pdf
The IL #law says that lawsuits may be filed “against any person who, while conducting #civil #immigration enforcement, knowingly engages in conduct that violates the Illinois Constitution or the #UnitedStates #Constitution.”
The #Trump admin promptly sued #Illinois, saying the #law violated the #Constitution’s #SupremacyClause, which generally prohibits #states from enacting measures at odds with #FederalLaw. Whether to allow lawsuits against #federal agents for violating the federal #Constitution, the admin’s complaint said, “is a policy choice for Congress.” [ridiculous]
Professor Amar said aspects of the IL #StateLaW might be problematic, but that its core idea is sound.
“#States can’t just generally regulate #ICE conduct, because the #federal government gets to regulate that,” he said. “But states *can* provide remedies against federal officials when federal officials violate federal constitutional rights.”
#Trump #Constitution #RightToProtest #federalism #StatesRights #CivilRights #AbuseOfPower #authoritarianism #autocracy #ICE #CBP #Sturmabteilung #UseOfForce #StateSponsoredTerrorism
Whether that is correct is a complicated question in light of another federal #statute, & it has not yet gotten sustained #judicial attention. But Judge Justin Walker, who was appointed to the US Court of Appeals for DC by #Trump, did consider the matter in a 2023 concurring opinion in a case arising from a #protest outside the White House in 2020.
#law #Constitution #federalism #StatesRights #CivilRights #autocracy #ICE #CBP #Sturmabteilung #UseOfForce #StateSponsoredTerrorism
Citing Professor Amar’s article, Judge Walker concluded that “nothing would stop a #state from creating a new cause of action allowing plaintiffs to directly allege federal constitutional violations.”
The #Illinois #law did that, but in imperfect fashion, acc/to a critique from Vikram David Amar, a law professor at UC Davis (& Akhil Amar’s brother), & Jason Mazzone, a law professor at the University of Illinois Urbana-Champaign.
The #law is “important & innovative,” they wrote, & “in keeping with the proudest tradition of #federalism.”
But it is, they added, both too narrow & too broad. It allows suits against only a subset of #federal ofcls, those engaged in #civil #immigration enforcement.
“It suggests that what you’re trying to do is influence #federal enforcement in an area of #policy that you disagree with, rather than trying to make sure everyone stays within the #Constitution,” Vikram Amar said in an interview.
As for the part of the #law that lets people sue #federal agents for violations of the #Illinois #Constitution, the 2 professors wrote, “that provision won’t stand” under the #SupremacyClause.
Still, Vikram Amar said, such #StateLaws can serve a larger purpose.
“In the spirit of #federalism. Not only can #states experiment in this way, but doing so would likely lead #Congress to address the problem,” he said.
#Trump #Constitution #StatesRights #CivilRights #autocracy #ICE #CBP #UseOfForce
“It’s unlikely that #Congress would want to leave a patchwork of different #state regulations & different remedies,” Vikram Amar said.
Link to 1987 law review article “Of Sovereignty and Federalism” by Akhil Reed Amar∶ https://akhilamar.com/wp-content/uploads/2021/12/Of-Sovereignty-and-Federalism-2.pdf
#Trump #law #Constitution #federalism #StatesRights #CivilRights #RightToProtest #AbuseOfPower #authoritarianism #autocracy #ICE #CBP #Sturmabteilung #UseOfForce #StateSponsoredTerrorism
Akhil Amar has been talking about this topic recently, so you don't have to go back to 1987. He's even been laying out application to current events.
Basically, NO, the federal Congress doesn't have to authorize states to pass legislation. States can do what they want legislatively.
So if an ICE agent breaks a state law, then regardless of what the federal Congress says, the state can bring charges against the agent in state courts.
Then it's up to the agent to show that they were actually carrying out an authorized, *constitutional* function of the federal government.
If they weren't, then they get thrown to the state.
