Deportations and the Constitution’s Supremacy Clause

Democrat leaders — mayors, governors, even school district board members — continue to say they will resist President Trump’s program to deport millions of illegal aliens.

President Trump made deportation one of his most significant campaign promises, telling audiences all over the country that he would implement the largest deportation effort in history. His promise to begin deportations on Day One won support and applause, and likely was one of the issues that propelled his campaign to Election Day success.

“On Day 1, I will launch the largest deportation program in American history to get the criminals out,” Trump told a huge audience at Madison Square Garden. “I will rescue every city and town that has been invaded and conquered, and we will put these vicious and bloodthirsty criminals in jail, then kick them the hell out of our country as fast as possible.”

Trump kept his promise. The ICE arrests started almost immediately after the inauguration. Within one week, there were nearly 5,000 unlawful aliens arrested, and deportation flights were in full swing. ICe arrests were made from coast-to-coast in cities like New York, Los Angeles, chicago, Denver, Phoenix, San Diego, Miami,Atlanta, Dallas, San Diego, and even San Juan (Puerto Rico). Many of those arrested have long criminal records for very violent crimes. Some have no records, which either means they have not committed crimes or we just have no access to their records in the countries they come from. Given the known fact that many countries emptied their jailed inmates and the residents of their mental asylums into the United States, it is not to be expected that these countries would provide U.S. authorities with these persons’ histories.

As stated by the Associated Press: “In just his first week in office, Trump’s administration has halted refugee arrivals; fast-tracked deportations; sent military troops to the southern border; lifted longtime rules restricting immigration enforcement near schools, churches and hospitals; attempted to end birthright citizenship; and ordered federal prosecutors to investigate state or local officials who they believe are interfering with his crackdown on illegal immigration.” (Hyperlinks in original AP reporting.)

Several large cities, including Philadelphia, Chicago, and Los Angeles, have flatly stated that they will protect their illegal alien residents from deportation by the Trump Administration. The question presented is whether, under the U.S. Constitution’s “Supremacy Clause” these local officials can impede or obstruct federal immigration enforcement efforts.

The Supremacy Clause in the U.S. Constitution (Article VI, Clause 2) establishes that:
The Constitution, federal laws, and treaties constitute the “supreme Law of the Land” and that they take priority over any conflicting state laws:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.“

It has long been understood that federal authority prevails over state laws, wherever they are in conflict and where there is a clear federal policy to preempt the area.

One of the most vocal protectors of illegal immigrants, the Mayor of Frederick, Maryland, Michael O’Connor, said that he would fight the promised mass deportations by funding lawyers to fight for migrants. O’Connor told a press conference, “We refuse to aid and abet outside agencies attempting to detain, deport, or remove any residents from our community.”

The local Sheriff of Frederick County, Sheriff Chuck Jenkins, however, quickly called the Mayor “foolish” and “an embarrassment.”

“The mayor is very foolish in making those statements. He’s been an embarrassment to Frederick City,” Jenkins said in an interview.” He’s self-aggrandizing himself to be more important than he really is. … This is not his concern. It is not his matter. Frankly, it’s put the Frederick police department and [Police Chief ] in a bad spot here,” the Sheriff added.

The Sheriff made clear that the Mayor can’t stop U.S. Immigration and Customs Enforcement (“ICE”) from enforcing the law.

Meanwhile, in California, Gov. Gavin Newsom declared before Trump’s inauguration that he intended to “Trump-proof” the state by calling a special legislative session to pass laws ensuing the continuation of California’s progressive immigration policies. California Democrats decided the state should spend $50 million to fight Trump Administration policies in court. Half the money would go to fighting Trump’s deportation. They did this before all the fires started burning down large areas in southern California. If only they had been as interested in preventing fires as they were in preventing Trump.

Los Angeles followed the state’s lead and passed an ordinance that prohibits its personnel, including city employees and police officers, from helping to carry out federal immigration enforcement.

It is estimated that some 951,000 of Los Angeles County’s 10 million residents are illegally in the United States. School District funding comes largely from county real estate taxation, and while the migrants have many children in the county’s school system, almost none of them are paying any real estate taxes, hugely burdening the home-owning citizens of L.A. County. The same problem exists throughout the country, with school boards overwhelmed by an influx of children who speak no English and who may not even be fluent or literate in their own language. Most of these people arrive impoverished, and pay nothing (well, nothing other than the tiniest amount of retail sales taxes) toward the costs of the schools, hospitals, and other services they use.

In Los Angeles, the school district declared itself a sanctuary for immigrants and the LGBTQ+ community, adopting resolutions stating that its schools are safe havens from immigration enforcement. The resolutions also instruct the school district employees not to voluntarily share the immigration status of students and their families with federal agents.

Boston Mayor Michelle Wu, who scheduled a holiday party from which white people were excluded, said she would protect immigrants without legal status in “every way possible.” She reiterated that local officials and police are prohibited from cooperating with federal immigration authorities. Mayor Wu said that 29% of Boston’s residents were foreign-born. On the state level, Massachusetts Gov. Maura Healey said she would use “every tool in the toolbox” to “protect our residents.”

But for all their loud denunciation of Mr. Trump’s immigration and deportation policies, state and local officials know that their ordinances and resolutions cannot stop deportations. But apparently they believe these tactics can slow down immigration enforcement and the deportation process.

Tom Homan, who was Trump 45’s former acting director of U.S. Immigration and Customs Enforcement (ICE) was tapped to serve as the new administration’s “Border Czar.” Homan quickly gave notice to local officials, who had announced their efforts to thwart federal deportation efforts, that he would seek their arrest. Specifically, he said that Denver Mayor Mike Johnston would be going to jail if he instructed local police to block ICE officers. Mayor Johnson had previously stated that he was “prepared to serve time in prison to halt any attempts at deportation.” But now the Democrat Mayor has some additional problems. A recent report showed that the City of Denver spent $356 million on migrants since December 2022. This amount worked out to $7,900 for each of the approximately 45,000 arrivals, plus education costs for more than 16,000 migrant children.

Mayor Johnston, who had previously said that he would order Denver’s Police Department to obstruct federal forces from deporting migrants, quickly back-peddled on those comments when he was threatened with jail time, instantly demonstrating a lack of a backbone, or just perhaps, a lack of conviction in his political announcements.

Speaking in Eagle Pass, Texas, Homon said, “Let me be clear, there is going to be a mass deportation.” Local officials who prevent or delay federal deportations can be charged with impeding federal officers, harboring illegal aliens, and other offenses.

What we expect to see from governors of blue states and from mayors of blue cities is no active efforts to impede federal law enforcement, but rather (following California’s Sanctuary State model) clear instructions for state and local employees to do absolutely nothing to assist the feds in their efforts. They will not even control traffic to help facilitate a federal enforcement action.

The new Trump Administration received a significant legal decision in their deportation efforts in the weeks before the inauguration. In the 9th Circuit, a federal appeals court set aside, as unlawful, an executive order passed by King County in Washington State that prohibited ICE from using Boeing Field airport to deport illegal immigrants. The decision affirmed a lower court’s summary judgment. The effect is to allow deportation removals from Boeing Field to continue.

See the 9th Circuit Opinion here.
See the King County Executive Order here.

The appeals court ruled that the county’s’ efforts to prohibit the feds from using Boeing Field was unlawful on two bases. The first was the violation under the Supremacy Clause of the U.S. Constitution, and the second was that such prohibition would breach the agreement made when the Federal Government gave Boeing Field to King County following WW II.

Judge Daniel A. Bress wrote that the executive order “discriminatorily burdens the United States” in the enforcement of federal immigration law” and that this “discrimination, plain on the face of the Order, contravenes the intergovernmental immunity doctrine” and thus the Constitution’s Supremacy Clause, which ensures that federal government activities not be obstructed by the laws, regulations, or actions of state and local governments in matters where the Federal Government has primary jurisdiction, such as immigration.

• “In recognition of the federal government’s independence from state control, the intergovernmental immunity doctrine prohibits states from ‘interfering with or controlling the operations of the Federal Government.’  It does so by proscribing state laws that either ‘regulate the United States directly or discriminate against the Federal Government or those with whom it deals’ (e.g., contractors).”

  “… That said, ‘any state regulation that purports to override the federal
  government’s decisions about who will carry out federal
  functions runs afoul of the Supremacy Clause.’” 

  [citations omitted.]  U.S. v. King County, 9th Cir., issued November 29, 2024.  (To read the entire decision, click on the “9th Circuit Opinion” hyperlink above.)

This case was brought by the first Trump Administration in February 2020, and was continued by Biden Administration. The decision comes at a time where it is highly significant to, and supportive of, the ongoing deportation efforts of the new Trump Administration.

It must be assumed that the deportations efforts will have state and local police support in the red states and will lack all cooperative efforts in the blue “Sanctuary” states. On Day One, Trump issued a “National Security Emergency Resolution” that will allow his Administration to utilize military personnel to assist in the deportation.

If police in the red states assist and police, in the blue states they do not, the result might be massive self-relocation by the illegal aliens to the blue states, placing further burdens on the blue states’ finances and significantly enlarging the proportion of illegals in those states.

Even prior to the election President Trump said on the campaign trail that he would hire 10,000 new Border Patrol agents and would immediately seek Congress’ approval for a 10% across-the-board raise for all ICE agents. He also unveiled plans for recruitment and retention bonuses of $10,000 for new hires and existing officers.

Just how many illegal aliens are living in the U.S.? It seems we don’t really know. Many have come up through checkpoints and immigration centers on the southern border, where they have been counted, but many others have circumvented Border Patrol, and while we know there are a lot of these people in this country, we really don’t know how many. The lowest possible number is 11 million. But the Federal Government has said we have had 11 million illegals in this country for years, and despite huge increases in the numbers of illegal migrants (which they term “Persons without documentation”), the official numbers don’t seem to move up from this estimate. Caravans of illegals arrived regularly during the Biden years, and they were bussed or flown to cities throughout the U.S., but still we are told the number is about 11 million. People who study this, however, provide estimates of 30 million, 40 million, even 50 million. Just what is the right number is not known, and it has to be presumed that is because the Biden Administration did not want us to know., and that now that Biden is gone we have no proper records to review. We expect there will be some new numbers, substantially raising the figure, announced once the Trump Administration has some time to get settled.