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The state of Minnesota and cities of Minneapolis and St. Paul are suing U.S Immigration and Customs Enforcement, calling the current ICE operation a “federal invasion” of the Twin Cities.

Minnesota Attorney General Keith Ellison 

 alongside Minneapolis Mayor Jacob Frey and St. Paul Mayor Kaohly Her.

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The 80-page document argues the federal government has violated the 10th Amendment of the U.S. Constitution. The announcement came just hours after the state of Illinois 

 against the U.S. Department of Homeland Security. 

For more on the legal argument Ellison is making, MPR News hosts Clay Masters and Nina Moini spoke with Jason Marisam, law professor at Mitchell Hamline.

Press play above to listen to their conversation, or read a transcript below, edited for clarity. 

We just heard Attorney General Ellison announce this lawsuit. Can you speak to the legal argument that the A.G. is making here?

Yeah, so first, I think it's really important that this is the state and cities bringing this. This makes it different than some of the stuff that we saw earlier, like last year, out of California, where there are individuals bringing challenges.

This opens up some really interesting new arguments about state sovereignty. I’ve seen the complaint. It's 80 pages long, but some of the core arguments are about state powers, and the federal government trampling on state powers. And in particular, singling out Minnesota without a valid, legitimate reason, putting the surge here. When you heard them in the press conference talk about other states where, if this was truly just about immigration enforcement, the priority wouldn’t be Minnesota.

Ellison said there are more immigration concerns in Texas, Florida and Utah; the difference is they have Republican governors. So it’s political. Can you break down that legal argument? 

Yes. There’s a constitutional principle about equal sovereignty of the states that came up in actually a voting-rights context, where the Supreme Court said that if the federal government is going to subject states or municipalities to extra scrutiny for different voting practices, there’s got to be a valid reason. You can’t sort of just arbitrarily put more scrutiny to this one state, but not the other, without a valid basis.

They’re taking that principle and extending it to the current context by saying that if you're going to do an ICE surge, it can't be willy-nilly. It can’t be arbitrary. There has to be a legitimate reason for why you’re focusing on Minnesota, and the reasons that we’ve heard from the Trump administration so far don’t stand up to any reasonable scrutiny of what’s really going on here. 

They’re taking that constitutional principle. It’s a novel application of that principle, but as we heard in the press conference, these are unprecedented times, so I don't think it’s bonkers to see novel applications of the law in response to novel exercises of executive authority.

What do you think about the argument that this “invasion,” as Frey said, is causing serious harm? They cite school districts going to distance learning and overtime costs for police agencies as examples of that harm. What do you think it would take really lay that case out and prove it?

First, the plaintiffs in the state of Minnesota and the cities here need to show what’s called standing to bring the lawsuit. So, they need to show that there is an injury that enables them to bring these claims. Some of those examples are there for them to say, “We are the right ones to sue here. Look at the hit to the state budget, to public schools.” 

The second piece is thinking about, “Do we have enough to convince a court to issue an order saying, ‘Stay away’?” That’s where you get to the legal claims.

For example, you mentioned schools. DHS used to have a policy of saying no immigration enforcement in schools. The Trump administration lifted that policy. But we still haven't seen, at least from the news reports I’ve seen, them actually sending ICE agents into schools. That would really be a clash of constitutional interests. 

There is no question that the states have the constitutional power to run these public schools. The federal government has been loath to go as far as directly interfering there. So, I think what the state would need to show is the surge that we have now is effectively enough that it is interfering with police and school to an extent that rises to that level.

Obviously, you can't speak for these officials, but it has taken a while to come forward with something like this. What took them so long?

Some of it is taking time to see the extent of what the practices are or how the surge is different than normal ICE operations, pre-surge. They’ve got to get that evidence. They’ve got to build it. I mean, they're going into court. It’s not enough just to say, “Hey, your honor, we’ve got this hunch.” 

They need to gather the facts and present them to the court, and so first you have that fact-finding operation. Then they’re trying to tie that into applications of constitutional principles that haven’t been applied spot-on to this situation, in part because the situation is unprecedented. 

They’re going to the court to say, “Be the first to do this, Your Honor.” You want to make sure that you've done all you can when you’re in that situation to go in and present the best argument to the court with both the facts and the application of these constitutional principles to this kind of unprecedented situation.

For those of us who aren’t honed up on the U.S. Constitution and its amendments, can you explain the 10th Amendment idea of establishing federalism by reserving any powers not explicitly given to the federal government?

The 10th Amendment says, “OK, we've got all these amendments in the Constitution that lay out the powers of the federal government, and if it’s not specifically laid out for the federal government or prohibited to the states, it’s reserved for the states.?

In some ways, it’s a catch-all provision. What does that mean? Well, we’ve seen cases from the Supreme Court where they’ve announced an anti-commandeering principle from that amendment, where they say the federal government can’t pass a law directing state and local officials to do X.

Say there were a case where local sheriff’s departments had to conduct background checks for gun purchases as a matter of federal law, and they said, the federal government can't commandeer those local officials to administer federal law. 

The argument we’re seeing in this lawsuit is an extension. We don’t have that direct commandeering here. We don’t have the Trump administration saying, “Minneapolis, St. Paul, state of Minnesota, you must do this.” But what they’re arguing is this surge is so great, so unprecedented, it’s having the effect of draining and using local and state resources. 

I think Mayor Frey was speaking to that, putting facts toward that legal theory, talking about the amount of police work that has gone along with this surge, not sort of administering the federal immigration law, but just dealing with aftermath and other incidents related to it.

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MPR News hosts Clay Masters and Nina Moini spoke with Jason Marisam, law professor at Mitchell Hamline, about the legal argument Attorney General Keith Ellison is making through the new lawsuit. 

Legal expert: New Minnesota lawsuit argues ICE violates state's rights

Legal expert: New Minnesota lawsuit argues ICE violates state's rights

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