While Congress is at a virtual stand-still on ICE reforms, state governments are working to put guardrails on federal immigration enforcement.
Why it matters: State lawmakers across the country are testing the extent to which they can counter President Trump's immigration blitz. It's already leading to legal fights.
Driving the news: During this year's legislative sessions in Virginia, Colorado, Oregon and beyond, lawmakers are weighing limits on federal immigration enforcement and proposing new accountability measures.
- But there's a red line states can't cross in their efforts, says Vikram Amar, a professor of law at UC Davis. States "can tell their local officials, 'We don't want you doing ICE's job,' but they can't tell ICE how to do ICE's job."
The other side: An ICE spokesperson blasted the efforts in a statement to Axios.
- "What these States are trying to do is unlawful, and they know it. Federal officials acting in the course of their duties are immune from liability under state law," they argued.
Here are some examples of how states are trying to rein in federal immigration authorities.
Local-federal partnership restrictions
Several states have ordered the dissolution of or banned partnerships — known as 287(g) agreements — between local law enforcement and ICE that have proliferated during Trump's second term.
- Maryland Gov. Wes Moore (D) says his state will work with feds to hold violent offenders accountable — but refuses cooperation "in ways that undermine the trust between law enforcement and the communities they serve."
- Some local sheriffs have condemned the legislation, arguing it could increase ICE presence on the streets. The ICE spokesperson told Axios that partnerships "are critical to having the resources we need to arrest criminal illegal aliens across the country."
- Moore's office says the measure would not impact policies related to DHS immigration detainers or prevent state or local jurisdictions from notifying ICE about persons of interest being released from custody.
Zoom out: Virginia Gov. Abigail Spanberger (D) similarly directed law enforcement agencies to terminate such agreements.
- Republicans argue doing so puts public safety at risk. But Spanberger contended in her order that Virginias deserve "resources devoted to the safety and security of their communities, not federal civil immigration enforcement."
Accountability measures
Illinois Gov. JB Pritzker (D) signed a measure allowing civil legal action against any law enforcement officer who knowingly violates the Illinois or U.S. Constitution. The Trump administration swiftly sued.
- Amar, a prominent expert in constitutional law, argues that trying to hold federal officials liable for violating state law won't stand up in court.
- But he applauds the part of the Illinois measure that imposes liability for violations of people's constitutional rights.
California Senate lawmakers passed legislation allowing suits for monetary damages against any officer, federal included, who violates their constitutional rights.
- California State Sen. Scott Wiener, sponsor of the No Kings Act, told Axios' Brittany Gibson, "This is a huge loophole and a huge weakness because it creates a sense of impunity, that federal agents can do whatever they want."
- Legislators have introduced similar proposals elsewhere. In New Jersey, Democrats introduced the Fight Unlawful Conduct and Keep Individuals and Communities Empowered act, which aims to permit civil action for constitutional violations related to immigration enforcement.
Between the lines: While federal statute authorizes individuals to sue state officials who violate their constitutional rights, Congress never did the same to impose liability on federal officers.
- The Supreme Court established a right to sue for damages via so-called "Bivens actions" — but that right has been limited in subsequent decisions over several decades with the justices rejecting to expand it beyond narrow circumstances.
- "To be able to enforce your rights, in order to make them meaningful, you ... need to have a right to sue," says Anya Bidwell, a senior attorney at the Institute for Justice. "And right now, when it comes to federal officials, we don't."
Masks, warrants and badges
State legislators are also trying to un-mask federal officers, as well as limit where immigration agents can conduct enforcement or make arrests without a judicial warrant.
- Legislation aiming to prohibit face coverings is pending in Maryland, Virginia, Washington and several other states.
Yes, but: A federal judge struck down California's law banning federal agents from wearing face masks earlier this month, deeming it discriminatory.
- "Where the state regulates the federal government directly, it's a nonstarter," Amar says. "California can't tell ICE how to do its job any more than Alabama can tell the Civil Rights Division how to do its job."
- The DOJ sued over New Jersey's executive order that prohibits ICE from entering or using nonpublic areas of state property unless authorized by a judicial warrant, arguing it "intentionally discriminates against the Federal Government."
The bottom line: The Trump administration won't let these efforts go unchallenged.
Go deeper: States testing limits of ICE, CBP agent immunity
Axios' Brittany Gibson contributed to this report.
