UMVA has learned that the Justice Department is threatening to sue four Democratic-led states for denying undercover license plates to Immigration and Customs Enforcement agents, opening a new constitutional front in the immigration fight.
The dispute centers on whether the blue states are simply refusing to help ICE carry out civil immigration enforcement, or whether withholding confidential plates interferes with the federal government’s ability to enforce immigration law.
Charles "Cully" Stimson, a senior legal fellow, said the states are playing a "dangerous game" by refusing to help protect ICE agents, but he also questioned whether DOJ’s Supremacy Clause argument is as straightforward as the department suggests.
Stimpson explained that federal law preempts state law when state law conflicts with a supreme federal law, but added that there is no law that conflicts with federal law in this case, only state actors refusing to issue these types of license plates.
DOJ Civil Division Assistant Attorney General Brett Shumate warned the governors of Maine, Massachusetts, Washington, and Oregon that they were running afoul of the Supremacy Clause of the Constitution by refusing to provide immigration enforcement officers with license plates that conceal their identities as federal agents.
An official in the Massachusetts governor’s office claimed that the commonwealth does issue undercover plates to federal agents, but only when they are investigating criminal offenses, and that immigration enforcement typically involves civil infractions.
However, Oregon and Maine appear to have issued broader suspensions of the issuance of undercover plates to federal agencies, sparking concerns that the states are putting lives in danger, not only of the people they're trying to pick up, but the agents themselves.
Tony Pham, former ICE director, believes the DOJ is well within its rights to compel the four states into issuing undercover plates using the Supremacy Clause, saying the Justice Department’s position is firmly grounded in the Constitution.
Rafael Mangual, a fellow at the Manhattan Institute, questioned the distinction between civil and criminal enforcement drawn by the blue states, saying they know full well that many of the individuals who would be subjected to civil immigration enforcement actions also pose real criminal threats in their communities.
Mike Fox, a legal fellow at the Cato Institute, was unimpressed with both sides of the debate, remarking it's not a "slam dunk for one side or the other," and that the answer is actually that they're both wrong.
Fox said in cases where "the state's imposing conditions on how federal law enforcement officers operate," that "pretty clearly violates the Supremacy Clause," but that this case is different because the state issues license plates, and it's not like the state is only issuing license plates to ICE and are withholding them.
