Plus: The future of IVF, diversity on the bench, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

[link removed]

Immigration enforcement is usually characterized as a federal issue. But the work of the U.S. Immigration and Customs Enforcement agency is intertwined with state law in a variety of ways, prompting new state litigation that will shape the relationship between ICE and the states and localities in which it operates.

One area where state law plays a big role is in the use of immigration detainers, which are voluntary, warrantless requests by ICE to other law enforcement agencies. These detainers ask law enforcement to notify ICE before an individual in their custody is set to be released — even if the charges were dropped or the individual was acquitted — and to keep them in jail for additional time so that ICE can take them into immigration custody.

During the first Trump administration, state supreme courts in Massachusetts

[link removed]

and Montana

[link removed]

and an appellate court in New York

[link removed]

ruled that state law barred law enforcement officers from complying with immigration detainers. (An appellate court in Minnesota

[link removed]

also found that a similar legal challenge was likely to succeed.) These courts all concluded that complying with a detainer constituted a new arrest under state law. And nothing in their states’ laws authorized law enforcement to make immigration arrests, which, these courts emphasized, are civil in nature, not criminal.

In September, a similar case, Voces de la Frontera v. Gerber

[link removed]

, was filed in the Wisconsin Supreme Court. The petition argues that the state legislature “has clearly laid out the complete extent of state and local law enforcement officers’ arrest authority in great detail,” and that this authority doesn’t include civil immigration arrests. The lawsuit asks the state’s high court to hear the case as an original action, bypassing the lower courts and allowing for statewide resolution more quickly. The court has not yet decided whether to accept the case.

Another source of conflict arises from states or localities entering into so-called 287(g) agreements with ICE. These agreements, which reference Section 287(g) of the 1996 Immigration and Nationality Act, allow ICE to delegate immigration investigation, apprehension, and detention to state and local law enforcement — a major amplification of enforcement capacity. ICE has now entered into more than 1,000 of these agreements, a historic high

[link removed]

.

Under federal law

[link removed]

, the U.S. attorney general can enter into such agreements, but only “to the extent consistent with State and local law.” Last year, a Colorado appellate court ruled

[link removed]

that a 2019 state law barring law enforcement officials from arresting or detaining individuals based on immigration detainers meant that a county could not enter into a 287(g) agreement to execute such detainers.

In June, a lawsuit

[link removed]

was filed in New York challenging the Nassau County Police Department’s 287(g) agreement, which gives the police broad authority over immigration arrests and detention. The lawsuit, which is pending and is the first legal challenge to these agreements in New York, points to earlier immigration detainer litigation and argues that New York law prevents the police from arresting or detaining people for civil violations of federal immigration law. The lawsuit further claims that the 287(g) agreement will result in illegal racial profiling. For all these reasons, the plaintiffs argue, New York localities can’t enter into 287(g) agreements.

Outside of activities by law enforcement, state law can also put constraints on ICE contractors. In California, a group of community-based organizations and activists has sued

[link removed]

Clearview AI, a company that offers a facial recognition database with billions of images scraped from websites like Facebook and Venmo.

The plaintiffs say that Clearview has provided services to ICE as well as local police departments, allowing them to “conduct arbitrary digital searches” without any privacy safeguards. The filing points to state constitutional privacy rights as well as state common law protections against the “appropriation of likeness” and seeks both damages and an order requiring Clearview to comply with state law. In a State Court Report article this summer, Nicole Ozer argued

[link removed]

that “Clearview’s surveillance practices are at the core of what the California constitutional right to privacy was designed to protect against.”

Finally, as these lawsuits proceed, new laws are asserting even more significant state powers. California recently passed a set of laws

[link removed]

that limit immigration arrests at schools, universities, and hospitals, bar law enforcement from wearing facial coverings, and require officers to identify themselves. In Illinois, the legislature recently passed a bill

[link removed]

, which is awaiting the governor’s signature, that bans ICE arrests in and around state courthouses and puts in place greater protections at day care centers and public hospitals. (Just this week, a New York federal court rejected

[link removed]

a legal challenge by the Trump administration to New York’s Protect Our Courts Act, which offers similar courthouse protections. Disclosure: The Brennan Center filed an amicus brief in this case.)

The Illinois bill would also create a state law cause of action against any person who knowingly violates the Illinois or U.S. Constitution while conducting civil immigration enforcement. Harrison Stark from the State Democracy Research Initiative recently made the case

[link removed]

that “converse section 1983s,” which create state remedies when federal officers violate U.S. constitutional rights, are permissible under federal law.

Look for more state litigation as the contours of state powers with respect to immigration enforcement continue to be tested.





IVF Users Face Uncertain Legal Landscape

In vitro fertilization, or IVF, is increasingly at the heart of the nation’s culture wars, writes University of California, Davis law professor Mary Ziegler. State courts are grappling with questions like ownership over and rights for embryos. Read more

[link removed]

Can the Right to Bear Arms Be Waived?

A solution to the constitutional uncertainty around many state-issued protection orders may come from an overlooked detail in the U.S. Supreme Court’s recent Second Amendment decision United States v. Rahimi, writes Eric Ruben, associate professor of law at SMU Dedman School of Law and a fellow at the Brennan Center. Read more

[link removed]

States Pass Constitutional Amendments on a Wide Range of Issues

Voters in multiple states approved changes to their state constitutions and statutes this month. The Brennan Center’s Erin Geiger Smith covers these changes, including a California redistricting measure that is part of a national battle over who will control the U.S. House of Representatives after the 2026 elections. Read more

[link removed]

A Dearth of Public Defenders on the Bench

Five of Colorado’s seven supreme court justices are former prosecutors. “Recent Colorado decisions granting more power to police and prosecutors while upholding needlessly cruel criminal punishment suggest this makeup matters,” writes Kyle C. Barry, director of the State Law Research Initiative. Read more

[link removed]

The West Virginia Constitution: Mountaineers Are Always Free

West Virginia’s “early constitution was notable for emancipation of enslaved people before the U.S. Constitution and an emphasis on personal freedom,” writes Charleston School of Law’s Michelle Mensore Condon. The essay is part of State Court Report’s ongoing series

[link removed]

exploring the history and quirks of the nation’s constitutions. Read more

[link removed]





You May Have Missed

After striking down Utah’s congressional map for disregarding citizen-initiated redistricting reforms, a Utah trial court last week rejected

[link removed]

a remedial congressional map passed by legislators, finding that it, too, failed to comply with the initiative. The court adopted alternative boundaries proposed by the plaintiffs, which created one Democratic-leaning district and three Republican-leaning districts. Read State Court Report’s most recent coverage

[link removed]

of the dispute.

The New Mexico Supreme Court has agreed to hear

[link removed]

a novel challenge under a state constitutional clause that says the legislature shall provide for control of pollution. State Court Report has covered

[link removed]

the case, including the intermediate court’s ruling that the clause does not create an individual right to a clean environment that the judiciary can enforce.

A case raising whether Pennsylvania’s ban on Medicaid funding for abortion violates the state constitution was argued

[link removed]

before a lower court this month. State Court Report published a series

[link removed]

on the Pennsylvania Supreme Court’s 2024 decision reinstating the challenge. The state high court elections this month highlighted that the justices will likely consider whether Pennsylvania’s constitution protects a right to abortion in the coming years. State Court Report also covered

[link removed]

the judicial race.

A California intermediate court struck down

[link removed]

a local ballot measure passed by Huntington Beach residents that would have permitted the city to verify voters’ IDs at all municipal elections, finding that the measure was preempted by state law. State Court Report has covered

[link removed]

principles that apply when state and local laws conflict.

A Tennessee judge temporarily blocked

[link removed]

the deployment of the National Guard in Memphis, as part of a case where local and state politicians claim the deployment violates the state constitution. The state has time to appeal before the order goes into effect. The Brennan Center has covered

[link removed]

the use of the National Guard for law enforcement.





Notable Cases

State ex rel. Boggs v. City of Cleveland

[link removed]

, Ohio Supreme Court

Held that residents who claimed that noise and vibrations from air traffic at the Cleveland Hopkins International Airport made their homes unlivable can sue the city for a taking even though they reside outside city boundaries. The court found that Ohio’s home rule clause, which bars a municipality from using eminent domain beyond its limits, does not relieve the city of its separate state constitutional duty to pay compensation when its actions amount to an extraterritorial taking. // Court News Ohio

[link removed]

Eyman v. Hobbs

[link removed]

, Washington Supreme Court

Denied a writ of mandamus seeking to order the secretary of state to advance a proposed parental rights referendum. The legislation that would have been put to a vote includes an emergency declaration exempting it from the referendum power in the state constitution. Bills intended to immediately address significant, ongoing harm qualify for the emergency exemption, the lead opinion held, which this legislation said it does by promoting student safety and belonging. // Yahoo! News

[link removed]

Netzer v. State

[link removed]

, Montana Supreme Court

Held that a law barring discrimination based on vaccination status does not violate a state constitutional requirement that bills have a single subject clearly reflected in their title. A provision banning mandates of vaccines that have not completed safety trials reasonably relates to the bill’s purpose: protecting people who decline vaccines from facing adverse consequences, the court found. // NBC Montana

[link removed]

Taking Offense v. State

[link removed]

, California Supreme Court

Held that a law prohibiting staff at long-term care facilities from “willfully and repeatedly” failing to use a resident’s preferred name or pronouns does not violate the federal First Amendment. According to the court, given the law’s narrow scope, it should be treated as a regulation of discriminatory conduct that incidentally affects speech, not as an abridgement of speech. // KVUE

[link removed]

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

[link removed]

.









[link removed]

Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271

646-292-8310

tel:646-292-8310

[email protected]

mailto:[email protected]

Support State Court Report

[link removed]



Did you get this message forwarded from a friend? Sign up here

[link removed]

.

View Online

[link removed]

Want to change how you receive these emails or unsubscribe? Click here

[link removed]

to update your preferences.

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]

[link removed]