Federal District Court Judge Rejects Minnesota’s Anti-Commandeering Arguments Against DHS “Operation Metro Surge” (and with Good Reason)

Speaking of commandeering, today in Minnesota v. Trump, federal district court Judge Kate Menendez rejected Minnesota’s request for an injunction against the Trump Administration’s “Operation Metro Surge” immigration enforcement initiative in Minneapolis. Unlike my co-blogger Ilya Somin, I believe Judge Menendez was entirely correct to do so, as existing law does not remotely support Minnesota’s claims.

As Judge Menendez recognized, the anti-commandeering doctrine is relatively narrow. It bars the federal government from issuing directives to state or local governments, Under the relevant cases, the federal government may not force state or local governments to administer or enforce a federal regulatory scheme or adopt federal law enforcement or regulatory priorities. For this reason, states are not obligated to assist the Department of Homeland Security in identifying, detaining, and deporting unlawfully present aliens any more than state or local law enforcement is required to assist the Drug Enforcement Agency in arresting and prosecuting those who use or possess (or even distribute) marijuana.

But the anti-commandeering doctrine does not prevent the federal government from pressuring states to cooperate, nor does it insulate states from the potentially burdensome or disruptive effects of federal law. Indeed, the relevant cases are quite clear on this. So, for example, New York v. United States held that it was permissible for the federal government to impose more stringent regulatory constraints and greater tax burdens on states that failed to address low-level radioactive waste in accord with the federal government’s preferences. Under the Clean Air Act, states that fail to adopt and maintain adequate State Implementation Plans are not subject to injunctions, but can face more stringent offset requirements and direct federal regulation that promises to be more onerous and less sensitive to local concerns than state or local regulation would be. (Threatening highway funds, on the other hand, might be a bridge to far.)

Other cases, such as Garcia v. SAMTA and Reno v. Condon also make it abundantly clear that states get no special exemption from the burdens or disruptions that may be caused by federal law. That’s the way federal supremacy works. If a given federal action is otherwise constitutional, it takes more than state or local displeasure to make the action unconstitutional. Indeed, were it otherwise state and local governments would have a de facto objectors veto (cf. heckler’s veto) over efforts to enforce federal laws to which state and local governments object.

In her opinion in Minnesota v. Trump, Judge Menendez seemed particularly concerned with the line-drawing problem: How to differentiate permissible federal enforcement decisions from those that are unconstitutionally coercive. Recognizing that the federal government is entitled to focus or concentrate federal enforcement efforts in line with federal priorities, including by focusing such efforts in non-cooperating jurisdictions, on what basis can such efforts constitute commandeering? As noted above, that such decisions may be unwelcome, burdensome, or even punitive is not enough under current law. Even in the conditional spending context it takes more than a naked threat to withdraw a large pot of money for inducement to become compulsion, such as the sort of reliance interests we saw in NFIB v. Sebelius.

None of this means that everything the Trump Administration is doing in Minnesota is lawful (let alone desirable). Congressional oversight of the Trump Administration’s immigration enforcement efforts, including (but not limited to) the tragic deaths of anti-ICE activists, is more than welcome. (Indeed, it is long overdue.) My point here is simply that whatever the legal or other problems with “Operation Metro Surge,” the idea that it constitutes unconstitutional commandeering or otherwise violates the Tenth Amendment is not among them–and even though she may not have wanted to, Judge Menendez agreed.