BOSTON, Mass. (Aug. 7, 2017) –  Last month, the Massachusetts Supreme Judicial Court held that court officers in the state do not have the authority to detain individuals solely based on requests by Immigration and Customs Enforcement (ICE) agents. The ruling sets the stage for widespread non-cooperation with federal immigration detainers in Massachusetts.

The court ruled that holding a person on an immigration detainer was tantamount to an arrest, and state law “provides no authority” for court officers to make such an arrest.

“No party or amicus has identified a single Massachusetts statute that authorizes a Massachusetts police officer or court officer, directly or indirectly, to arrest in the circumstances here, based on a federal civil immigration detainer.”

Laura Rótolo serves as staff council and community advocate for the ACLU of Massachusetts. She told the New York Times the decision should apply to all state law enforcement officers.

“Anybody who has the ability to arrest a person will be bound by this decision,” she said.

Practically speaking, the court ruling will prevent state and local law enforcement agencies from holding individuals on federal immigration detainers unless they can be held for another crime. The NYT said the decision could severely disrupt federal immigration enforcement efforts.

“Experts said the ruling could be another local setback for federal immigration authorities, who issue civil detainers to request that local authorities keep a person in custody for a day or two longer than they normally would.

“’It reduces the leverage of ICE in asking local and state cops to honor detainers,’ said Muzaffar Chishti, of the Migration Policy Institute, a nonpartisan research group. Mr. Chishti added, ‘it also gives an argument for localities in this case who are reluctant to honor detainers for a variety of reasons, that gives them additional legal basis to say no.'”

Ultimately, the state retains the authority to decide whether or not it will participate in federal immigration enforcement efforts. As the Court pointed out, the Massachusetts legislature could pass a state law requiring cooperation with ICE immigration detainers, but unless that happens, the authority currently doesn’t exist.

The decision dovetails with the well-established anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court dating back to 1842. In the foundational case, the Court held that the federal government could not force states to assist in fugitive slave rendition.

“The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.”

Bristol County Sheriff Thomas Hodgson said he was already working with three Republican legislators to introduce a bill requiring state and local law enforcement agencies to honor federal immigration detainers.

“It will make the Commonwealth safer if we can get this bill passed by the legislature, which authorizes court officers and law enforcement officers to honor ICE detainers,” he said.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.