Trump’s Drive for Power Threatens Local Sovereignty
On May 9, Mayor Ras Baraka of Newark and Representatives LaMonica McIver, Bonnie Watson Coleman, and Rob Menendez, all New Jersey Democrats, stood in front of Delaney Hall, an immigration detention facility in the city.
Baraka had been there a few days in a row, adamant about his right to inspect the facility. But though he remained outside the jail’s gates, he was arrested by federal officers and charged with trespassing.
Alina Habba, once one of Trump’s personal lawyers and now the interim U.S. Attorney for New Jersey, said the mayor “ignored multiple warnings from Homeland Security Investigations to remove himself” and chose “to disregard the law.”
Several days later, Habba dropped the charges against Baraka, but charged Congresswoman McIver with assault against a federal officer. McIver had appeared to come into contact, in a scrum, with a federal officer who was blocking the entrance to Delaney Hall.
We are accustomed to Trump flouting and subverting the law, but perhaps less observed are the ways in which his administration seems determined to shut down local sovereignty. Baraka and McIver’s arrests reflect how the federal government is determined to threaten politicians and officials at every level to enforce compliance with its agenda, even when there are state or local laws that stand in their way. Rather than accept the limits of federalism, a legal doctrine roundly acknowledged by well-known liberal squish former Supreme Court Justice Antonin Scalia, Trump’s government appears determined to ride roughshod over state and local sovereignty.
We are accustomed to Trump flouting and subverting the law, but perhaps less observed are the ways in which his administration seems determined to shut down local sovereignty.
Delaney Hall isn’t traditionally an immigrant detention facility, but as the Trump administration rapidly increases detentions, beds have been running short. ICE contracted with GEO Group, one of the country’s largest private prison groups, for $1 billion to turn Delaney Hall into an immigration detention center capable of holding 1,000 people. Baraka had been arguing for weeks that GEO Group did not have the required city permits to house people; he was also a plaintiff in a lawsuit against GEO Group to prevent the opening of the jail. Regardless, GEO Group and ICE went ahead and housed people in the facility without allowing city officials to conduct health and safety checks. It would make sense that the mayor, tasked with enforcing Newark laws, would ask questions. McIver, as a member of Congress, has every right under federal law to inspect federal detention facilities, too.
Baraka and McIver are not alone. Just a few weeks ago, the FBI arrested Milwaukee County Circuit Judge Hannah Dugan, who allowed an immigrant to leave her courthouse through a side entrance because ICE agents were parked in the courthouse lobby. Courthouse arrests are now permissible but weren’t always because they deter people from coming to court. Cities and states have long been able to make rules limiting the intrusion of federal law enforcement, and experts have pointed out that this politically-motivated arrest threatens the integrity of state court systems and the rule of law.
Meanwhile, Trump’s Department of Homeland Security has been pushing local law enforcement agencies to enter into so-called 287(g) agreements. Named for the provision allowing them in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, these pacts empower local police to act as immigration agents, including, in some cases, to arrest and detain people simply because they may be deportable.
While local law enforcement can and do work with federal law enforcement, states and individual departments have the authority to restrict such partnerships. There are some states, like California and Washington, which do not allow 287(g) collaborations.
Steven Miller, for his part, has argued vociferously that such “sanctuary states” are violating federal law. But, of course, before 2025, states have long been allowed to make laws related to state law enforcement, who operate under local control. This is a fundamental legal doctrine, one generally treasured by conservatives.
Of course, state and local sovereignty are not necessarily positive in and of themselves. It was, after all, the ex-Confederate states who refused to desegregate public schools based on arguments of local sovereignty. In 1958, then-President Dwight D. Eisenhower sent the National Guard to force Little Rock’s public high school to allow Black children to enter. Southern states protested mightily against this violation of their perceived right to be racist. (Law professor Robert McKay, writing for The Nation at the time, said Little Rock’s actions amounted to “state anarchy.”). The Posse Comitatus Act of 1878, which limits the military from acting as local law enforcement, was born out of the Confederate rebellion against Reconstruction and ending forced labor.
But the ineffectiveness of Congress, and the Supreme Court’s decision in Trump v. United States, have changed the legal calculus. Under the Trump decision, the president cannot be criminally charged for official actions, no matter how egregious they are. The far-right heralds this decision as ushering in the age of the “unitary executive” — the idea that the president should be more powerful than all other government institutions. While the Republican Party once stood up for local control, it now sees a powerful federal government as their friend.
Far-right groups like the Claremont Institute have long called for a Red Caesar, an anti-democratic autocrat who will restore American greatness. In their minds, local multi-racial democracies, like the government of Newark, are actually the problem — one they are willing to squash without regard for the consequences.
Jessica Pishko is an independent journalist and lawyer who focuses on how the criminal justice system and law enforcement intersects with political power. As a Democracy Docket contributor, Jessica writes about the criminalization of elections and how sheriffs in particular have become a growing threat to democracy.