The NY Times lays out how THAT could happen under State Law’s and old Supreme Court decision that could send this to a Congress that IS taking a HARD look at The Homeland Security Department with ICE and CBP….
The key to holding Immigration and Customs Enforcement agents accountable for constitutional violations may lie in a 1987 law review article by a young law professor named Akhil Reed Amar.
“I think it was a good idea then,” he said last week, “and it’s only taken more than half a lifetime for people to actually read the thing.”
The article has, in truth, been quite influential. It has been cited, for instance, in seven Supreme Court opinions. But it was also 96 pages long and touched on many issues.
“I was actually trying to do a bunch of different things — and get tenure,” Professor Amar, now a leading constitutional scholar at Yale Law School, said of the article, “Of Sovereignty and Federalism.”
His central point for present purposes was that state legislatures can authorize lawsuits against federal officials for violating the Constitution. If that is right, such state laws would close an odd gapin federal law that — broadly speaking — allows such suits against state and local officials, like police officers, but not against federal ones, like ICE agents.
Congress authorized the first kind of lawsuit in an 1871 law that most people call Section 1983. But Congress has not enacted legislation allowing suits against federal officials for violating the Constitution.
“It’s an enormous problem that federal officials are in some ways the hardest people to hold accountable for violating people’s constitutional rights, even harder than state and local officials,” said Carolyn Shapiro, a professor at Chicago-Kent College of Law and a former solicitor general of Illinois.
The Supreme Court tried to address the gap in 1971 in Bivens v. Six Unknown Named Agents, allowing the victim of an unconstitutional search by federal agents to sue them. But the court has essentially abandoned that approach, saying instead that Congress must act if suits against federal officials are to be allowed.
That is where state lawmakers come in, Professor Amar said.
“Sometimes the federal government will misbehave,” he said, “and you can’t count on Congress always to rein the federal government in.”…
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His article drew on two principles often associated with conservatives: federalism and originalism.
“This is exactly what the framers imagined: state law protecting us against federal abuses,” Professor Amar said.
Over the years, some states — including California, Maine, Massachusetts and New Jersey — have enacted laws along the lines that Professor Amar proposed, though they are largely untested, and Illinois recently adopted one tailored to address the conduct of ICE agents.
The Illinois law says that lawsuits may be filed “against any person who, while conducting civil immigration enforcement, knowingly engages in conduct that violates the Illinois Constitution or the United States Constitution.”…
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