Airports already tend to be pretty stressful places, but New Yorkers this week were subjected to the added bizarreness of patrols of ICE agents at JFK and LaGuardia. The agents had been deployed there at the order of Donald Trump, with varying explanations. The president claimed agents would make arrests, but also said that they would merely be shoring up an overstretched TSA. The agency has experienced significant absences as officers go unpaid while the government shutdown stretches on — the product of congressional Republicans refusing to entertain Democratic demands to put constraints on ICE operations.
Ultimately, agents appear to be doing little in practice, with videos and accounts from New York’s airports showing agents mostly just milling around, doing nothing as local elected officials including Mayor Zohran Mamdani condemned their presence and called for them to be removed. ICE’s presence at the airports does highlight where they are not, and that is doing large-scale raids around the city. The last time ICE attempted a sizable immigration enforcement operation was roughly four months ago, when hundreds of agents attempted to raid street vendors in Chinatown and were boxed in by protesters who completely derailed the operation in a humiliating defeat. That raid came after another the prior month, which has now been scrutinized by federal judges who have ruled that at least some of those arrests were illegal.
More broadly, Trump — always far more of a marketing creature than an ideological one — seems to be realizing that the immigration crackdown is a driver of his tanking approval ratings and increasingly unpopular even with some elements of his voter base. The federal occupations have proceeded as aggressively as they have in part because ideological hard-liners like Stephen Miller have been given free reign to set policy. It’s been clear from the beginning that Trump is, at best, consulted on the specifics of the mass detention and deportation apparatus, with Miller and Tom Homan driving the bus.
If Trump starts to feel, though, that this is becoming an increasingly existential threat to his long-term popularity, I can imagine he might rein them in. Even if he doesn’t understand the mechanics of the operation, he understands the headlines. That’s probably why former Homeland Security Secretary Kristi Noem unceremoniously got the boot earlier this month after spending $220 million on an ad campaign. Her replacement, Markwayne Mullin, does not seem like a particularly more competent or sane successor, but I’d imagine he’s intent on avoiding Noem’s fate, which functionally might mean generating less bad press. Even deep red areas are now incensed by the administration’s plan to open up mega detention centers in their jurisdictions, for example.
Still, that doesn’t mean local policymakers are taking a wind-down for granted. State lawmakers have once again introduced the New York For All Act, which would generally bar all cooperation between state officials and federal immigration enforcement authorities. More moderate officials, including Gov. Kathy Hochul, are worried about drawing the restrictions so broadly that they would keep the state from cooperating on serious criminal matters. Hochul has proposed the slimmed down Local Cops, Local Crimes Act, and it now seems like immigration enforcement limitations will be folded into state budget legislation to bridge that gap.
Separately, a coalition of lawmakers and community organizations are pushing for a $175 million state funding injection into immigration legal services. They argue that the funding is vital because unlike in criminal cases, people in civil immigration proceedings have no constitutional right to a free lawyer. Part of the administration’s strategy has been to take people into custody and keep conditions so poor that they give up on their cases and agree to deportation, even if they actually do have a claim to legal status.
One of the only tools that has been effective at keeping people out of detention are floods of constitutional Habeas Corpus petitions wherever Homeland Security ramps up arrests, which of course requires a lot of legal manpower by immigration attorneys and others working pro bono. Despite the Trump administration’s efforts to frame immigration as two distinct “legal” and “illegal” tracks, the reality is that it has both stripped temporary legal status from over a million and a half people and detained people regardless of legal documentation. These are all complex legal issues that most people find very difficult to parse, which means that it’s often up to the lawyers to identify when DHS is acting outside its authority.
Hochul has also pushed for a lesser-known proposal: allowing New Yorkers to sue federal officials who violate their civil rights. There is a whole complex legal and legislative history here, but the very basic summary is that, while everyone obviously agrees that as a matter of law federal agents cannot violate your constitutional rights, the remedies available have long been uncertain. If an ICE agent violates your Fourth or First Amendment protections, for example, options for legal recourse are surprisingly limited.
A landmark federal statute from 1979 allows people to file suit against local and state officials who have engaged in constitutional violations, but it notably does not include federal officials. In the landmark 1971 decision of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court allowed individuals to sue federal agents for damages. However, courts have since chipped away at that precedent, making Bivens cases notoriously difficult to win. Legal scholars have posited that states have the authority to independently create the ability of a state resident to sue federal officials for constitutional violations, and indeed several already have statutes on the books that could in theory enable it. New York’s bill would add language to the state civil rights law allowing a broad “right of action for the deprivation of constitutional rights.”
There would certainly be some operational and legal challenges in the event that someone actually did bring suit in a state court. It’s likely that the federal government would try to remove the case to federal court, probably successfully, at which point it might run into some of the precedent that the Supreme Court has set since Bivens. Officials would almost certainly claim qualified immunity, so plaintiffs would have to prove that agents were acting essentially outside the scope of their own duties in a way that was unconstitutional. Still, I think it’s an interesting idea that takes seriously the state’s own power and authorities under our federal system and laws, which is something I’ve been pushing for.
If you’ve been wondering what you can do to help constrain Trump’s authoritarianism while living in a blue state, remember that we are currently in the budget negotiation frenzy and these issues are in active legislative negotiation. It’s not a bad time to make your voice heard by calling offices or attending meetings with state legislators, who often get less attention than congressional offices.
