Does ICE have Both Local and National Authority in The Good Fight?

From The Good Fight (Season 2, Episode 12)

Categories:

Run time: 2:06

Clip Description:Agents from ICE (Immigrations and Customs Enforcement) wish to detain a man, but if he is in jail, they cannot obtain him.

American Politics Concepts Discussed/Connected To: The city considers itself a “sanctuary city” and declines to commit its own officers and jail facilities to enforcing federal immigration law.

Possible Uses in Classroom: This clip is good for a discussion on immigration. It also works when considering whether power should be placed more in the federal government or in state and local governments.

Discussion Questions

The federal government cannot order state and local officers to administer a federal program. That anti-commandeering rule was built in the 1990s in cases about waste disposal and gun background checks, Printz v. United States among them, and it was understood at the time as a limit conservatives wanted. It now protects cities that decline to help with immigration enforcement. When a structural rule keeps changing which side it benefits, is that evidence the rule is principled, or evidence that it is a tool?
When federal agents ask a jail to hold someone past the moment they would otherwise be released, that request is not a judicial warrant, and courts have held that a jail complying without independent legal authority can be liable for the additional detention. Make the strongest case for the sheriff who cooperates anyway, and the strongest case for the police chief who refuses because witnesses and crime victims stop calling. Notice that both arguments are public safety arguments.
Suppose your own city adopted the immigration policy you personally disagree with. Is your objection to the policy or to the level of government that made it? Test yourself directly: would you give the same answer about local control if the local policy ran the other way? And notice how the show stages the argument: states’ rights arrives here as the sympathetic, even heroic move, where in most American history courses that same phrase arrives as the language of resistance to civil rights enforcement. Did the framing change how the argument sounded to you?

Assignment

Find the actual policy where you live: a sheriff’s written policy on federal detainer requests, a city ordinance or council resolution, or a state law that requires or forbids local cooperation, since states have legislated in both directions. Then find one document arguing the federal side, from DHS or ICE. Write a two-page memo to a county executive recommending a policy, and argue for the side you did not hold when you started. The difficulty is that both positions rest on public safety and on law, so you have to beat the better version of the argument rather than the slogan version.

For AP Students

AP U.S. Government and Politics
Unit 1: Foundations of American Democracy

Topics: 1.7 through 1.9, on federalism and the division of power between the states and the national government
Skill: Concept Application (1.E): explain how processes apply to a scenario in context
Anchors: McCulloch v. Maryland (1819); United States v. Lopez (1995); Supremacy Clause; Tenth Amendment

Federal agents want to take custody of a man being held in a local jail, and the local authorities are in no hurry to hand him over. Immigration enforcement is federal; jails are local. The scene is a clean picture of the difference between holding authority and having the cooperation you need in order to use it, which is the part of federalism students find hardest to see in the abstract.

Discussion questions

Immigration enforcement is a national power, but the man is sitting in a county jail. Name the constitutional provision that makes federal law supreme, then explain why supremacy alone does not get the agents what they want here.
The Tenth Amendment reserves to the states the powers not given to the national government. Explain why the national government generally cannot order state and local officers to carry out a federal program for it.
A local government that declines to cooperate with federal enforcement is either using the constitutional design as intended or undermining it. Pick one and defend it in two sentences.

Short activity

Put the scene on the line (15 minutes). Students draw a horizontal line with national power at one end and state power at the other, and place McCulloch v. Maryland and United States v. Lopez on it, justifying each in a sentence. Then they place this scene and explain the placement. That move — setting a new fact pattern beside a required case and arguing which way it leans — is the whole of the Supreme Court comparison question, and it is worth rehearsing on facts that are not themselves a case.

Clip hosted on Critical Commons.