Minnesota ACLU: Local jurisdictions have the right to not cooperate with immigration enforcement

During President Donald Trump’s first week in office, his new Department of Justice announced plans to potentially criminally prosecute local and state officials who fail to “comply with lawful immigration-related commands and requests.”

It mirrors threats in letters sent out last month by a Trump-allied group, America First Legal, to local officials across the country — including a dozen in Minnesota.

These counties along with Minneapolis and St. Paul have limited cooperation with the Department of Homeland Security, specifically Immigration and Customs Enforcement, in some way.

While there isn’t a legal definition for these “sanctuary” jurisdictions, they do have the power to deny requests from DHS or ICE under the Constitution, according to Teresa Nelson, the ACLU of Minnesota’s legal director.

“The 10th Amendment makes it clear that states have the ability to separate their functions from the federal government's functions, especially in this context,” Nelson told MPR News host Tom Crann on All Things Considered.

“There are also state constitutional protections against, for example, holding somebody for ICE without a valid judicial warrant.”

She anticipates this issue will likely have to play out in courts.

To hear more of the interview with Teresa Nelson, use the audio player above or read the transcript below, which has been lightly edited for clarity.

We hear this term ‘sanctuary cities’ or ‘jurisdictions’ because there's no real legal definition of one, right?

That is correct. What we do have are local jurisdictions that have said they are going to focus on local matters and not on immigration.

So, when government employees, government officials or police interact with people, they are not going to inquire into immigration status or do anything with regard to assisting or providing help to the federal government to enforce immigration laws.

How do you respond to the argument being made here that these sanctuary policies are actually hindering federal officials from doing their job to enforce immigration law?

There is a continuum and immigration enforcement is solely a federal function. So, the failure of a state to lend its limited resources to carry out federal operations is not equivalent to hindering, interfering or obstructing with the carrying out of those operations.

The 10th Amendment makes it clear that states have the ability to separate their functions from the federal government's functions, especially in this context. There are also state constitutional protections against, for example, holding somebody for ICE without a valid judicial warrant. The Minnesota Court of Appeals has held that violates our state constitution. It's an unreasonable seizure of an individual.

What do you see as the next step here?

In Minnesota, we do have case law on some of the issues that relate to enforcement of immigration law. We will continue to enforce those.

There may be litigation — the memo that the [national office of the] ACLU did does not include any cases out of the Eighth Circuit, which is our jurisdiction. However, the Eighth Circuit just last week ruled that an Iowa law purporting to enforce immigration law was invalid and unconstitutional because the federal government has sole province over immigration law.

So, I think, we will continue potentially to see new cases that will establish the contours of the 10th Amendment right of state and local governments to do their thing. And we’ll probably see a continuation of the federal government's attempts to conscript local law enforcement.

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