//  7/24/17  //  Commentary

In a major rebuke to the Trump administration’s interpretation of federal immigration law, the Supreme Judicial Court of Massachusetts ruled this morning that it is illegal for a state or local court officer to hold someone in custody pursuant to a voluntary request by federal immigration agents. The long-awaited opinion effectively turns Massachusetts into a sanctuary state, setting up a legal and political battle with the Department of Justice over immigration enforcement and federal funding.

Today’s decision was one of the first state-court takes on “detainers,” the controversial practice of federal immigration agents at the heart of the current debate over sanctuary cities. When a state or local police officer arrests a person who federal agents believe might have entered the country illegally, the federal agents often ask the locality to “detain” the person in jail for up to 48 hours while the federal agents figure out whether to deport the person. Sanctuary cities, by definition, refuse to comply with these requests and instead free people from custody when there’s no longer a legal reason to hold them behind bars. This has been a sticking point for the soon-to-be-fired attorney general Jeff Sessions and the you-can’t-fire-me-I-quit communications secretary Sean Spicer, who famously said that detainer-challenged cities “have the blood of dead Americans on their hands.”

Sreynuon Lunn, a Massachusetts resident whose parents fled to the United States from the Khmer Rouge in Cambodia, was the subject of one of these detainers. Last October, he was arrested for unarmed robbery but the court dismissed his case. Ordinarily, at that point, he’d be free to go. But federal immigration officials sent a detainer to the court, which held him in a holding cell until federal agents could take him into federal custody.

Lunn petitioned the Supreme Judicial Court of Massachusetts for help, arguing that it violated state and federal law for a court to hold him in custody after all criminal charges against him had been dismissed. The court acted too late to help him—it’s now July—but it did hold that in future cases it’s illegal under state law for a court to detain an immigrant in Lunn’s situation.

The court held that holding Lunn in custody after he should have been released was an “arrest” under state law. In Massachusetts, police officers can arrest a person only if (1) the officer has a warrant, (2) the person is committing a criminal offense, or (3) there is a specific statute that authorizes the officer to arrest the person in that circumstance.

The court held that none of these three situations applied in Lunn’s case. First, it emphasized that a detainer is not a warrant—a signed order by a judge demanding that a person be placed in custody. Instead, detainers are mere requests for local officials to hold people in jail while federal agents get their act together. As a federal court similarlyruled in April, “ICE civil detainer requests are voluntary and local governments are not required to honor them.”

Second, the court quoted Supreme Court Justice Anthony Kennedy’s words that, “as a general rule, it is not a crime for a removable alien to remain present in the United States,” and that deportations are “a civil, not criminal, matter.” This is a point that is often lost in debates over illegal immigration, but an immigrant who remains present in the country without authorization is as much a “criminal” as a driver who remains in a parking space after the meter expires.

Finally, the court looked through the “numerous and varied” state and federal laws authorizing arrests and couldn’t find “a single Massachusetts statute that authorizes a Massachusetts police officer or court officer, directly or indirectly, to arrest in the circumstances here, based on a Federal civil immigration detainer.” Nor could they find a federal statute authorizing the arrest, as the federal statute on sanctuary cities, 8 U.S.C. § 1373(a), doesn’t say anything at all about detainers.

Today’s decision effectively turns Massachusetts into a sanctuary state. Even if Massachusetts police officers or court officers want to comply with federal detainers, they legally can’t do so under current state law. Although Sreynuon Lunn won’t benefit from the decision, countless other Massachusetts residents won’t need to worry about state officers arresting them for suspected violations of federal immigration law.

The decision will also likely defuse an anticipated showdown between Massachusetts’s Democratic legislature and its Republican governor over the Safe Communities Act, a “sanctuary state bill” that would accomplish the same objective and more. Governor Charlie Baker has threatened to veto that act.

But the decision will set up a new contest between Massachusetts and the “beleaguered” attorney general, Jeff Sessions. Although Sessions has retreated from enforcing the executive order on sanctuary cities that President Trump issued in January, President Trump’s draft budget includes a new provision that, if enacted, would require states like Massachusetts to enforce detainers.

In addition, the decision comes as states like Texas are moving in the opposite direction and passing laws requiring cities to enforce detainers. Texas officials reportedly defended their anti-sanctuary-city bill on the ground that detainers are already federal obligations.

The Supreme Court of the United States isn’t likely to hear any appeal from today’s decision, which interprets state law, not federal law. But just as the Massachusetts high court inaugurated a nationwide debate over same-sex marriage in 2003, today’s decision will likely have a major impact on other states currently deciding how and whether to enforce federal immigration law at home.

The Electoral College Shouldn’t Get in the Way of D.C. Statehood

7/7/20  //  Commentary

By Jessica Bulman-Pozen & Olatunde Johnson: On June 26, 2020, the House of Representatives voted to make DC the fifty-first state in our Union. This should be an urgent priority for the 117th Congress—but before passage, the bill should be modified in a way blessed by the Supreme Court’s decision yesterday in Chiafalo v. Washington.

Take Care

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: The Military in the U.S. and Proxy Voting in the House

6/7/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie take on two topics. First, what can the president legally do to use the military on American soil? Second, is it legal for the House of Representatives to vote by proxy, without being physically present in D.C., as alleged in a new lawsuit by House Republicans? Listen now!

Charlie Gerstein

Gerstein Harrow LLP