White House Deputy Chief of Staff Stephen Miller, the architect of some of President Donald Trump’s harshest immigration policies, has claimed that federal agents carrying out arrests and deportations are immune from prosecution.
In a recent interview on Fox News, Miller hit out at opposition to the Trump Administration’s plans to carry out the largest mass deportation in United States history, accusing Illinois Gov. J.B. Pritzker of “seditious conspiracy” for his attempts to block those efforts and threatening his arrest.
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Miller also announced in a message to agents with the Immigration and Customs Enforcement (ICE) agency: “You have federal immunity in the conduct of your duties. And anybody who lays a hand on you or tries to stop or obstruct you is committing a felony.”
ICE and Border Patrol agents have been the tip of the spear for Trump’s hardline deportation agenda, deploying to cities around the country to conduct arrests and raids of anyone in the country illegally.
Agents from those agencies have been accused of using increasingly aggressive tactics to meet ambitious arrest targets set by Miller and the Trump Administration, which has sparked protests and opposition across the country.
Several high-profile incidents have highlighted those tactics. ICE agents joined with Border Patrol to conduct what Pritzker described as a “military-style” raid at a Chicago apartment building earlier this month. One ICE officer in New York was removed from duty after he forcibly threw a woman to the floor at an immigration court, only to return a week later. Another ICE agent fatally shot a Mexican immigrant in Illinois during an arrest attempt, and incidents between ICE, protesters and journalists outside of an ICE facility in Chicago created the basis for the case against the Administration for alleged violations of First and Fourth Amendment rights, which led to a judge granting a temporary restraining order blocking federal agencies from using forceful tactics to stop protesters or journalists.
Those incidents have prompted some District Attorneys to say they would seek prosecutions of ICE agents who break the law in their jurisidictions.
So are ICE agents really immune, as Miller claims?
‘Necessary and proper’
Stephen Vladeck, a professor of law at the Georgetown University Law Center, argues no—at least on its face.
“The federal government absolutely retains the ability to prosecute federal law enforcement officers who break the law, even in the course of carrying out their duties,” Vladeck writes in a newsletter published Monday.
Vladeck argues that while these agents are protected by an immunity doctrine, that doctrine is not as absolute as Miller makes it out to be.
Miller is relying on the doctrine known as “Supremacy Clause immunity.” This immunity protects federal officers from state criminal prosecution when they are carrying out their official duties under federal law, provided their actions were “necessary and proper.”
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This makes sense, Vladeck says, since “[o]therwise, states could criminalize the very conduct that federal law enforcement officers engage in and thereby thwart the enforcement of any federal law with which they disagree,” including things like anti-discrimination laws.
The “necessary and proper” idea, though, is up for much debate, and could lead to holes in Miller’s claim, as Vladeck points to lower circuit decisions that federal agents are not given this immunity unless their behavior would be found to be “reasonable.” If these agents are acting outside of their federal authority, that immunity would not be as air-tight.
“Even at its most robust, Supremacy Clause immunity would not preclude a local or state prosecution of ICE officers for all scope-of-employment conduct,” Vladeck says.
Howard Bashman, an appellate lawyer and legal columnist, agrees.
“Even as an argument about state criminal prosecutions, that claim is overstated at best,” he wrote on his blog.
The comments come a week after Democratic Rep. Dan Goldman, who represents New York, sent a letter to New York City Police Commissioner Jessica Tisch, calling on NYPD officers to be trained and equipped to arrest and prosecute federal agents who break state laws.
“ICE’s own policy makes clear agents cannot assert civil immigration enforcement authority over U.S. citizens,” Goldman wrote to Tisch. “Yet, under the Trump administration, there have been dozens of credible reports—some recorded on video—showing the agency doing exactly that, with violence and impunity.”
Several other District Attorneys and lawmakers claim that their offices would file charges against ICE agents breaking the law. For example, San Francisco District Attorney Brooke Jenkins said her office would review any “clear, excessive use of force” by federal agents and file charges if warranted.