Several justices on Massachusetts’ highest court seemed to agree Tuesday that local law enforcement officers cannot detain immigrants wanted by federal authorities solely for immigration violations, setting the stage for the state to be one of the first in the country to claim a legal defense to President Trump’s immigration policies.
“The real issue here is, what can the feds demand of our state, given the state of our laws,” Supreme Judicial Court Justice Geraldine S. Hines asked a government lawyer, who had insisted that local officials have the inherent authority to enforce federal immigration laws.
For years, federal authorities have issued so-called detainers to local law enforcement officials asking them to hold, for up to 48 hours, people wanted for immigration offenses, a civil violation. Those requests are bound to increase under Trump’s pledged strengthening of immigration enforcement.
But critics argue that the requests put pressure on local authorities to detain someone who would have been released but for the immigration detainer, a violation of that person’s rights and the state’s sovereignty.
“What in our state law does permit this?” Hines asked Joshua Press, an attorney with the US Department of Justice. She added, “I don’t see anything in your [argument] that suggests what that might be.”
The Supreme Judicial Court was asked to decide whether state law allows local law enforcement officials to hold someone for an immigration violation without any accompanying material, such as a warrant, a judicial order, or probable cause that a crime has occurred — requirements the immigration detainers lack.
Press, under repeated peppering by the high court justices, acknowledged, “We are not experts on Massachusetts law.”
He maintained, however, that there is no law that usurps local law enforcement officials’ inherent authority to enforce federal laws.
“No law has circumscribed the Commonwealth’s power to cooperate with the federal government in these matters,” he said, arguing that the state Legislature would have to pass a law prohibiting local law enforcement officials from such cooperation. “We haven’t seen anything taking this authority away from them.”
The court review of immigration detainers comes as the Trump administration has pledged to ramp up the deportation of immigrants who commit crimes and violate immigration laws. Trump has vowed to cut funding to local communities who refuse to assist federal immigration authorities.
Municipalities across the state have lashed back, saying their police departments should be building trust with local immigrant communities, not spreading fears of deportations, a federal matter. Many have passed laws declaring themselves as sanctuary cities, a general term meant to declare their communities as welcoming to immigrants.
The Supreme Judicial Court is believed to be the first state high court in the nation to review whether local enforcement officials can detain someone solely for federal immigration offenses.
Attorney General Maura Healey’s office intervened on behalf of the state and argued that it would be unlawful for local law enforcement officials to hold someone solely on an immigration detainer, but that local communities can still find ways to work with their federal counterparts to address individuals who pose public safety risks.
During oral arguments Tuesday, Press acknowledged that the federal government cannot force local law enforcement officials to assist in enforcing detainers. But he argued that the communities can do so if they choose, and that they historically have and should continue to out of comity.
He argued that critics’ concerns that the detention of immigrants without a criminal warrant would violate their due process rights is misplaced, because federal law allows for the detention of immigrants wanted for deportation. Massachusetts has the implicit ability to invoke that authority, he said.
But Press also acknowledged under questioning by Chief Justice Ralph Gants that the detention of someone in Massachusetts for any matter would constitute the arrest of that person.
“Do you agree that there needs to be state law which authorizes a state law enforcement official to make that arrest?” Gants asked. Press agreed.
Emma Winger, an attorney for an immigrant who was detained by a state court official on an immigration detainer, even though his underlying criminal case had been dismissed, argued that there is no such state law authorizing that arrest.
“Under Massachusetts law, we’ve never recognized any sort of implicit authority,” she argued. “The idea that individual officers have implicit authority absent the legislature of the courts raises the sort of concerns of arbitral arrest that [the Constitution] intended to address.”
After the hearing, Winger rejected arguments that immigrants are not entitled to the same due process rights of citizens, saying: “Our Constitution protects liberty, regardless of where the person’s alienage is. So there should be no lesser protections for somebody just because they are not a US citizen.”Milton J. Valencia can be reached at firstname.lastname@example.org. Follow him on Twitter @miltonvalencia.