Newly-elected Virginia Governor Abigail Spanberger is refusing to cooperate with federal Immigration and Customs Enforcement (ICE) efforts to detain and deport unlawfully present immigrants, including those with criminal records. Whether or not one agrees with this policy, Governor Spanberger is under no obligation to help the federal government enforce federal law. For the same reasons that New Hampshire cannot be required to implement the federal Clean Air Act, states cannot be directed to enforce (or even facilitate the enforcement of) federal immigration law. This is the import of the anti-commandeering principle embodied in cases like New York v. United States, Printz v. United States, and Murphy v. NCAA.
While states may not be commandeered by the federal government, states can be required to comply with generally applicable law--that is, laws that regulate state activities that are otherwise subject to federal regulation, such as employment or the operation of certain functions. States also cannot block federal efforts to enforce federal law directly, such as occurred with Operation Metro Surge. As I have explained previously, Minnesota's arguments that the federal government violated the anti-commandeering principle by deploying federal agents to enforce federal immigration laws in Minneapolis bear no weight.
I unpack the anti-commandeering principle a bit more in my latest Civitas Outlook column. Here is a taste:
