Options for Illinois pushback against ICE abusiveness

Axios just ran some quotes from me about how the state (and city) can push back against the egregious ICE behavior that we’ve seen in recent days. Because, as these things go, they cut out some of the details and caveats, I thought it would be worth reproducing the full statement I sent them, with a couple of links to further sources and maybe even some elaborations, here. With no further ado, slightly edited version of what I sent to the reporter follows:

We've been here before. In the period before the Civil War, and especially after the Fugitive Slave Act of 1850, free states were forced to come up with creative ways to impede the federal government's abusive efforts to spirit away their community members. We can borrow from their toolkit today.

Generally, the federal government is free to use its discretion, within the law, to enforce federal law. However, there are some promising avenues that the state and the city might be able to use to push back. In particular, even though ICE, the Border Patrol, etc., are authorized to enforce federal law, they still have to abide by the law themselves.

In lots of ways, ICE and Border Patrol seem to be breaking the law. Illinois and Chicago should enforce their existing laws against crimes and civil violations committed by federal agents, such as laws against battery when they use excessive force and laws against trespassing when they break into private property without a valid warrant.

Similarly, the Supreme Court has allowed states to sue to defend the rights of their citizens. The state ought to consider suing to defend the Fourth and Fifth Amendment rights of Illinoisans who are subjected to unconstitutional stops and searches and detentions. I also think that the practice of federal agents concealing their identities with masks violates the Due Process Clause because it prevents those whom they abuse from seeking judicial and political accountability for their conduct. Illinois can help stand up for those rights on behalf of its people.

Finally, some scholars have argued, based on longstanding Supreme Court precedent, that states have the authority to enact and enforce generally applicable laws that also cover federal officials, like California's legislation barring masked police. If Illinois, or maybe even Chicago, passed legislation like that they might be able to enforce it against ICE officials.

On that last point, there's an active scholarly debate. Erwin Chemerinsky, the dean of Berkeley Law and an extremely well-regarded constitutional scholar, made the case in defense of California's legislation in this Sacramento Bee column---it's really worth a read. However, you should know that other scholars disagree with this, it's very controversial. (Addendum: Vik Amar’s counterargument is here.)

(Some more stuff that I didn’t send to the journalist) While Amar’s argument has some force to it as applied to the mask law in particular, it doesn’t touch the generally applicable laws against battery and trespass which I’d argue already apply to ICE and which they seem to be violating willy-nilly.

Moreover, I would actually be inclined to argue that law enforcement wearing masks is unconstitutional. This isn’t super fully developed (it’s on my personal agenda), but I sketched the idea in a Bluesky thread recently. Reproducing it in here a little cleaned up:

We ought to be developing an argument that masked secret cops violate the due process clause. It would take some doing, but I think could be done based on a fuller development of 2 ideas:

(1) the notion that part of due process is public accountability for official compliance with law (a kind of hybrid of due process and the first amendment derived from the publicity principle of my rule of law theory); and

(2) that due process has to be perceptible to an individual interacting with cops, that is, they have to have reasonable assurances they the person arresting them is a real cop, will take them to a real court where they will have a fair hearing, etc. (I'm tentatively developing some of these ideas in the second amendment chapter of the current book in progress, where I'm arguing that we ought to read the 2nd Amendment backwards into the Due Process clause--if government action gives reasonable people no real option but to engage in self-defense, it is for that reason unconstitutional).

Masked cops impede both of those critical aspects of due process, and for that reason are unconstitutional.

There was at least one civil rights era case about cops concealing identities--in Bogalusa LA the Klan cops would cover up their name badges, and there was at least one injunction ordering them to stop, which they promptly violated. Details in this Bluesky thread. (The injunction is also the thumbnail of this post.)