186. When Can States Prosecute Federal Officers?
Stephen Miller claims that ICE officers have "immunity" for anything they do while enforcing immigration law. Even as an argument about *state* criminal prosecutions, that claim is overstated at best.
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As ever, there is … a lot going on. But I was particularly struck by comments that White House Deputy Chief of Staff Stephen Miller made on Fox News on Friday. In response to concerns about whether ICE agents could be prosecuted by local or state authorities for their increasingly controversial conduct in and around Chicago, Miller first accused Illinois Governor J.B. Pritzker of “seditious conspiracy,” and then, in a message certainly intended to be heard far and wide, said: “to all ICE officers: you have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”
We have, obviously, become completely desensitized to how utterly outrageous the first part of Miller’s statement is—especially given the fact that Miller is part of an administration that has pardoned people who were actually convicted of seditious conspiracy for their role in attacking the Capitol on January 6, 2021. Their accusations are so often confessions.
But I wanted to devote a bit of time to the second part of Miller’s message—his claim that ICE officers have “federal immunity in the conduct of [their] duties,” and that anyone who seeks to prosecute them is committing a felony. It is, to be clear, wrong on its face. The federal government absolutely retains the ability to prosecute federal law enforcement officers who break the law, even in the course of carrying out their duties. Indeed, the specter of criminal prosecution has long been the federal government’s principal argument for why we don’t need damages remedies to ensure that immigration officers follow the law. The fact that this administration is wholly uninterested in pursuing such prosecutions is a problem, but given that most of the relevant statutes of limitations won’t expire until 2030 or later, that’s not even close to “immunity.”
The more interesting issue, though, is Miller’s insinuation that ICE officers would be immune from local or state prosecutions. There certainly are some contexts in which the Constitution forecloses local or state governments from prosecuting federal officers—through a doctrine that has come to be known, however unspecifically, as “Supremacy Clause immunity.” But the rule is not nearly as categorical as Miller suggests—nor is it a “felony” for local or state authorities to arrest someone who they have probable cause to believe committed a state crime. Below the fold, I walk through the doctrine (such as it is), and what the key questions would be if one of these cases were to actually arise.
But first, the news.
On the Docket
The Merits Docket
The justices began last week by adding three new cases to the merits docket for the current term. The headline among them was United States v. Hemani, in which the Fifth Circuit had struck down the federal statute prohibiting gun possession by anyone who is “an unlawful user of or addicted to any controlled substance” on Second Amendment grounds. (Yes, this was the statute in the Hunter Biden case.) Like just about everyone else, I think the Court is going to reverse—and uphold the federal statute. But I also agree with those who have pointed out that there’s something not entirely satisfying about pursuing progressive policy goals through bespoke exceptions to the Court’s Second Amendment jurisprudence.
Last Monday’s regular Order List also deferred to the (not-yet-scheduled) oral argument on the merits the question of whether one of the transgender athlete cases the Court agreed to decide this term—Little v. Hecox—has become moot. Otherwise, the only merits docket news out of the Court last week was a housekeeping order last Thursday respecting the allocation of argument time in the tariffs cases—still on track to be argued next Wednesday.
The Emergency Docket
Even without any movement on the two pending applications from the Trump administration (or one other significant, non-Trump-related application), the justices managed to make news on the emergency docket last week. Specifically, the Court issued a pair of rulings on Thursday refusing to stay Alabama prisoner Anthony Boyd’s execution by nitrogen hypoxia. One of those rulings spurred a striking, nine-page dissent from Justice Sotomayor—joined in full by Justices Kagan and Jackson.
Sotomayor’s dissent, which is worth reading in full, documents the disturbing track record of the unnecessary pain and suffering that nitrogen hypoxia as a method of execution has caused—a track record that Boyd’s execution later on Thursday certainly seems to have reinforced. As she wrote, “Boyd asks for the barest form of mercy: to die by firing squad, which would kill him in seconds, rather than by a torturous suffocation lasting up to four minutes. The Constitution would grant him that grace. My colleagues do not. This Court thus turns its back on Boyd and on the Eighth Amendment’s guarantee against cruel and unusual punishment.” As usual, I agree with Sotomayor here. Even if one buys the tortured logic of Justice Gorsuch’s majority opinion in Bucklew v. Precythe—that there must be some method of capital punishment that doesn’t violate the Eighth Amendment—Boyd specifically identified and argued for one. If a majority of the justices no longer believes that the Eighth Amendment has anything to say about the means by which we allow the government to kill people, it ought, at the very least, to say so.
The only other relevant emergency docket news last week came Monday, when Justice Kavanaugh quietly denied the application in Hess v. Oakland County (seeking to block a prosecution for threats made during an election recount). I had previously expressed some puzzlement over why Justice Kavanaugh had even called for a response in that case, but at least it didn’t make it to consideration by the full Court.
The Week Ahead
Because the justices did not have a regular Conference scheduled last week, we do not expect a regular Order List at 9:30 today. Instead, if we hear anything from the Court this week, it will almost certainly be with respect to pending (or late-breaking) emergency applications. As noted above, there are still the two pending applications from the Trump administration—in Trump v. Illinois (which may have been complicated by the Department of Justice’s bizarre acquiescence in an extension of Judge Perry’s underlying TRO); and in Trump v. Orr (the sex-marker-on-passports case). As of this morning, Orr has been pending for 38 days—which is getting close to the maximum even in the Trump cases (the only application that the justices have taken longer to resolve without argument was the application in Trump v. Wilcox, which took 43 days).
The Court is also still sitting on the application in Castro v. Guevara (the international child custody dispute I’ve written about before), so a ruling in that case could come this week, as well.
Miscellaneous
There continues to be uncertainty about how the Court will handle the November argument session (which begins next Monday) given the ongoing government shutdown. As I wrote last week, I think the most likely outcome is oral arguments in person, but with the Court and the courtroom closed to the public—as was true during the entire October 2021 Term. But one way or the other, we’ll likely find out the answer soon.
The One First “Long Read”:
The Limits of Supremacy Clause Immunity
The doctrine that is today known as “Supremacy Clause immunity” has its origins in an 1890 Supreme Court decision I’ve written about before—In re Neagle, which arose out of the attempted assassination of Justice Stephen Field. In Neagle, the Supreme Court held that California could not prosecute David Neagle (who had been deputized as a federal marshal to protect Field) for shooting and killing Field’s would-be assassin, even though, unbeknownst to Neagle, the victim was unarmed when he was killed. As the Court explained:
[I]f the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as [a federal officer] of the United States, and if in doing that act he did no more that what was necessary and proper for him to do, he cannot be guilty of a crime under the law[s] of the [state]. When these things are shown, it is established that he is innocent of any crime against the laws of the state, or of any other authority whatever. There is no occasion for any further trial in the state court, or in any court.
This understanding derives from the Supremacy Clause because it’s by dint of that constitutional provision that state criminal laws must give way to the valid actions of a federal officer acting pursuant to federal authority. And as controversial as much of the federal government’s current law enforcement activity may be, there’s a lot to commend at least the broader principle undergirding Supremacy Clause immunity; if the Constitution truly does elevate federal law over state law, it wouldn’t make sense if states could prosecute federal officers for official actions that were necessary to enforce federal law (e.g., enforcing anti-discrimination laws). Otherwise, states could criminalize the very conduct that federal law enforcement officers engage in and thereby thwart the enforcement of any federal law with which they disagree.
The critical point, though, is that even at its broadest, Supremacy Clause immunity does not categorically insulate federal officers from local or state prosecutions for (to quote Stephen Miller) any actions undertaken “in the conduct of their duties.” Rather, following Neagle, modern courts will generally apply Supremacy Clause immunity only when both of two conditions are satisfied: When (1) the federal officer was performing an act that he was authorized to do by federal law; and (2) in performing the authorized act, the federal officer did no more than what was necessary and proper. Put another way, it’s not enough that the federal officer was carrying out their duties; their conduct must also have had some significant connection to their ability to do that which federal law authorizes.
Of course, what counts as “necessary and proper” is—and has been—a matter of some debate. There’s broad agreement among lower courts that the question goes to whether the officer’s actions were reasonably necessary to carry out his or her duties. The principal dispute has been over whether that reasonableness should be measured purely objectively (i.e., by asking what a reasonable person in that officer’s position would have thought), or whether it should include subjective considerations, as well (by also accounting for whether that officer specifically thought his actions were necessary).
Then-Judge Michael McConnell, writing for the Tenth Circuit in a 2006 case, provided a helpful summary of the competing considerations before endorsing a more objective standard. As he concluded, “a federal officer is not entitled to Supremacy Clause immunity unless, in the course of performing an act which he is authorized to do under federal law, the agent had an objectively reasonable and well-founded basis to believe that his actions were necessary to fulfill his duties.” (Tellingly, the Tenth Circuit left “for another day . . . whether federal officers are entitled to Supremacy Clause immunity where their state law violation was disproportionate to the federal policy they were carrying out—where, for example, they commit a grievous state offense for the purpose of enforcing a trivial federal policy.”)
Although not every jurisdiction uses the exact same formulation, McConnell’s view is the prevailing one today. So were Chicago or Illinois officials to bring charges against ICE officers for state law crimes arising out of their behavior on raids, for instance, the question would be whether a reasonable officer would have thought that the conduct giving rise to the state law criminal charges was necessary to discharge the authorized federal duties. That’s a generous standard, to be sure. But it is by no means a get-out-of-prosecution-free card.
Not surprisingly, the contours of the Supremacy Clause immunity doctrine have been criticized—including in a new and helpful paper by Professor Michael Mannheimer and a thoughtful 2023 Virginia Law Review student note by Dev Ranjan. And the Supreme Court hasn’t weighed in on the subject since … 1920. So I don’t mean to suggest that the law is crystal clear here.
But what is clear is that Miller is wrong. Even at its most robust, Supremacy Clause immunity would not preclude a local or state prosecution of ICE officers for all scope-of-employment conduct. The question would turn, at least under Judge McConnell’s approach, on whether the officer “had an objectively reasonable and well-founded basis to believe that his actions were necessary to fulfill his duties.” That analysis may well come out in the officer’s favor in the mine run of cases. But it wouldn’t (and, historically, hasn’t) in all of them.1
To be sure, I still believe that the specter of criminal prosecutions, even by local or state officials, is a woefully inadequate deterrent for misconduct by federal law enforcement officers. Among lots of other things, there is plenty of law enforcement conduct that would constitute a violation of the Constitution but not of any state criminal statutes. Criminal prosecutions are for a subset of unlawful federal law enforcement activity—albeit the most important subset.
Still, two things can be true at once: There ought to be even more pathways for holding federal officers who violate our rights accountable; and local and state criminal prosecutions, in at least some cases, are not remotely foreclosed—so that state officers who seek to pursue such cases in good faith are not committing any crimes under federal law. There may be political reasons why local or state prosecutors will be wary of bringing such cases. But—and I know this is a shock—the relevant law is far more permissive when it comes to the ability to hold federal officers accountable than Stephen Miller would have you believe.
SCOTUS Trivia:
Frank Wagner on the Court Explaining Itself
Finally, this week’s “trivia” comes courtesy of my friend and American University Washington College of Law Professor Jeff Kahn, who brought the following episode (and linked article) to my attention last week.
Frank Wagner served as the Court’s 15th “Reporter of Decisions,” the officer responsible for disseminating the Court’s rulings to the public, from 1987 to 2010. In the February 2005 issue of the Michigan Bar Journal, he told a remarkable story about an exchange he’d had with Valery Zorkin, President of the (then-nascent) Russian Constitutional Court, in the spring of 1993. (N.B.: Zorkin is still in that post.) To quote Wagner:
Chairman Zorkin asked me a final question. It nearly threw me for a loop when he inquired: ‘‘How do you keep the press and your enemies from lying about what you’ve decided in important cases?’’ As I understood it, the Chairman was not simply asking whether or how the Supreme Court tries to dissuade its critics from putting unwarranted spin on its rulings. Rather, he seemed to be asking the much more basic question of how we defend ourselves against bald-faced liars bent on distorting our work in order to destroy the Court’s credibility and, thus, its effectiveness as a functioning arm of Government. The question was so astonishing to someone raised in the western democratic tradition that it took me several moments to arrive at the answer. Finally, a light dawned. I told Chairman Zorkin that what we do is disseminate our decisions as promptly and as widely as possible through a variety of print and electronic media so that those interested can quickly and easily determine for themselves what the Court has ruled on a particular question. Since the Chairman’s visit, I have come to believe that public access to the Court’s decisions, no matter what the medium or source, is one of the bearings that keeps democracy’s wheels turning true. Though it is my job to publish the official United States Reports, I view public access websites and other opinion redisseminators not as competitors, but as collaborators in a great and noble endeavor. While resorting to the U.S. Reports is a must for judges, lawyers, and litigants, unofficial publishers play a vital role by making the Court’s cases available to a much wider audience than we would otherwise reach ourselves. . . . Whether a particular unofficial source reprints the Court’s opinions unvarnished, or attempts to ‘‘add value’’ in the form of synopses, headnotes, or hyperlinks, it is helping the Court do its work by spreading its word to the world.
Wagner was, of course, extolling the virtues of widespread public access to the Court’s rulings—with which I wholeheartedly agree. But his implicit point—about how the public’s ability to understand the Court’s rulings is “one of the bearings that keeps democracy’s wheels turning true”—is one that resonates powerfully today, especially in the breach.
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One procedural note: Any attempt by a local or state government to prosecute a federal officer for conduct arising out of their duties will almost certainly be removed to federal court—because the federal officer removal statute is broader than Supremacy Clause immunity, and would allow removal based upon the mere assertion of a Supremacy Clause immunity claim (whether or not that claim is ultimately meritorious). That doesn’t change who would prosecute such a case (or who would respond to the defendant’s immunity arguments); nor does it bring the President’s pardon power to bear. It just shifts the case from one courthouse (and jury pool) to another.
My expectation is that SCOTUS will, implicitly if not explicitly, weave together two dubious concepts, viz, the concept of a unitary executive and its concept of presidential immunity, to rule that the immunity SCOTUS recognized for the president’s official acts extends to federal officials—and most clearly and completely to federal law enforcement officers—when they are attempting to carry out the president’s orders, because their acts are—in effect—the acts of the president for whom they are merely agents. The Court will find that the agents are protected under the umbrella of presidential immunity if they reasonably believed that their actions could contribute to implementing a presidential order.
Call it the trickle down theory of presidential immunity: Because all executive power resides in the president alone, presidential immunity logically must extend and flow from the president down to his agents for the same or similar reasons that the president himself has immunity: “Appreciating the ‘unique risks’ that arise when the President’s [agents’] energies are diverted by proceedings that might render [them] … ‘unduly cautious in the discharge of … [their] official duties,’ the Court has recognized Presidential immunities and privileges [extend to federal agents and are] ‘rooted in the constitutional tradition of the separation of powers and supported by our history’.”
Because John Roberts is more clever than I am, I cannot insist that each link in SCOTUS’s chain of logic will be exactly the same as those I have suggested, but I would bet a 12-pack of good beer that Roberts will in some way weave together the unitary executive theory and the theory of presidential immunity (with some “separation of powers” and “deference” language slathered on to plaster over the gaps) to sculpt a novel concept of immunity for federal officials who carry out official orders for which the president himself would enjoy immunity. (Apologies for the quadruply mixed metaphor, but you get the idea.)
Roberts will claim this immunity is “nothing new.”
I cannot say it loudly enough or often enough: SCOTUS will not save us.
In our current post-constitutional situation, with Congress abdicating its role and the Judiciary so broken that legal arguments will not inspire SCOTUS to restrain Trump in any decisive way on any substantial issue, We The People are going to have to figure out the least destructive tactics to save ourselves and our republic from Trump’s abuses of power.
I appreciate all the information you’ve given us. But I’m sickened by the absolutely disgraceful inhumane outcome of Anthony Boyd’s execution which took a full half hour.