On January 21 the DOJ issued a directive establishing its policy of arrest and deportation of unauthorized persons. It starts off by focusing on behavior of Latin American gangs (“cartels”) but extends to all unauthorized persons. I want here to focus on the administration’s goal to coerce state and local governments to participate. The Immigration Legal Resource Center analyzed the document: “MEMORANDUM FOR ALL DEPARTMENT EMPLOYEES,FROM: THE ACTING DEPUTY ATTORNEY GENERAL. January 21, 2025.SUBJECT: Interim Policy Changes Regarding Charging, Sentencing, and Immigration Enforcement.” (Go here for this memo, go here for another memo).

The ILRC comments, “The directive orders federal prosecutors to investigate and prosecute state and local actors who may be carrying out sanctuary policies or otherwise not agreeing to assist with immigration enforcement. Prosecutors who decline such cases will be required to document their reasons.”

Language in the memo: Assertion that state and local jurisdictions most comply: The Supremacy Clause and other authorities require state and local actors to comply with the Executive Branch’s immigration enforcement initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands and requests pursuant to, for example, the President’s extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act. The U.S. Attorney’s Offices and litigating components of the Department of Justice shall investigate incidents involving any such misconduct for potential prosecution, including for obstructing federal functions in violation of 18 U.S.C. § 371, and violations of other statutes, such as 8 U.S.C. §§ 1324,1373.

Commentary by ILRC: This section threatens sanctuary jurisdictions with various legal actions. It makes some sweeping claims that misstate the law, such as the first sentence which erroneously claims that state and local actors have to comply with immigration enforcement initiatives. The U.S. Supreme Court has clearly held that the federal government can’t require states or localities to use their resources to enforce federal programs, such as immigration. This section also directs US federal prosecutors and other DOJ divisions to investigate incidents of resistance to federal immigration enforcement, including but not limited to federal crimes of conspiracy and harboring. This is not limited or specific to local governments or sanctuary policies, but could also potentially apply to organizations or individuals. This section provides motivation for the DOJ to focus prosecutions on immigration advocates and activists for their work.

Anti-commandeering doctrine: The Supreme Court has three times since 1992 affirmed that the federal government cannot compel state or local governments to enforce federal law. This has been called the “anti-commandeering” doctrine. In New York v. United States (1992), the Court struck down a provision of a federal statute that required states to take ownership of radioactive waste or face penalties. Printz v. United States (1997) concerned a provision of the Brady Handgun Violence Prevention Act that required local law enforcement officers to conduct background checks on prospective gun purchasers. The Court ruled that compelling state officers to execute federal laws violates the Constitution. in Murphy v. NCAA (2018), the Court invalidated a federal law that prohibited states from authorizing sports betting.

Also from the memo, a top line focus on immigrants who commit crimes. This is the main justification for the entire memo – mass deportations per se are not envisioned explicitly.

From the Memo, the mission: First, Cartels and other Transnational Criminal Organizations, such as Tren de Aragua (TdA)  and La Mara Salvatrucha (MS-13), are a scourge on society resulting in an unstable and unsafe border and huge flows of illegal immigration in violation of U.S. law. Second, brutal and intolerable violent crime by members of these organizations and illegal aliens is escalating rapidly across the country. Third, the fentanyl crisis and opioid epidemic are poisoning our communities and have inflicted an unprecedented toll of addiction, suffering, and death. The Justice Department must, and will, work to eradicate these threats.

[Focus on persons with associations with crime]: Consistent with the core principle of pursuing the most serious, readily provable offense, U.S. Attorney’s Offices and the other components shall pursue charges relating to criminal immigration-related violations when such violations are presented by federal, state, or local law enforcement or the Intelligence Community.