Credit: Mark Avery/AP/File 2007

The Evolution Of 'States' Rights' In The Age Of Donald Trump

July 26, 2017

For decades, conservatives have relied on states’ rights claims to hold back the seemingly inexorable expansion of federal rights. Throughout the Jim Crow South, states cited their autonomy to justify laws designed, in effect, to undermine federal efforts at desegregation and voter enfranchisement. More recently, states with rightward-leaning inclinations have passed laws aimed at eroding the federal constitutional promise of a right to abortion. Local attempts to thwart federal gun control measures have often appealed not just to the Second Amendment but to state-specific values as well.

To be sure, progressives over the years have asserted states’ rights in trying to provide protection beyond what federal law affords. The U.S. Constitution is generally the floor, not the ceiling, of individual liberties, and states can offer more robust rights to their residents than those guaranteed at the federal level.

Lawyers in Massachusetts last year, for example, referenced state constitutional norms in convincing the state Supreme Judicial Court to grant greater Fourth Amendment protection for African-American men who flee the police in Boston than what they could expect based on precedents set by the U.S. Supreme Court.

And consider the legal history behind the recognition of same-sex marriage: There was a steady stream of states that acknowledged this right before the Supreme Court weighed in two years ago.

But President Donald Trump has altered the calculus for litigants when it comes to arguments grounded in states’ rights. The expansion of federal rights is no longer seemingly inexorable. On the contrary, the opposite has become the signature of this administration. That means progressives may occasionally feel compelled to draw on states’ rights to play defense, not offense.

The SJC’s groundbreaking opinion this week in Lunn v. Commonwealth reflects this development. In that case, all pending criminal charges against Sreynuon Lunn were dismissed, but Massachusetts court officers decided to keep him in a holding cell at the request of a federal agent seeking to enforce a federal civil immigration detainer. The issue was whether the Massachusetts officers had the authority to do so given the absence of any state or even federal criminal allegations.  

The SJC looked at various sources of law to determine whether state officers possess this power. 

First, it decided that Massachusetts common law (essentially the case law in the jurisdiction) does not provide the basis "for police officers to arrest generally for civil matters, let alone authority to arrest specifically for Federal civil immigration matters." Second, the court examined the statutes passed by the state legislature and likewise found no authority to make arrests in civil matters. Notably, the SJC rejected the federal government’s main argument — that state officers have the “inherent authority” to act in this manner under Massachusetts law — and it did so in resounding fashion.

“The prudent course,” wrote the justices, “is not for this court to create, and attempt to define, some new authority for court officers to arrest that heretofore has been unrecognized and undefined. The better course is for us to defer to the Legislature to establish and carefully define that authority if the Legislature wishes that to be the law of this Commonwealth.”

In other words, the SJC found that the question of whether a state officer may enforce a federal civil immigration detainer should be answered by the state legislature, not the wishes of the federal government. 

This opinion represents not only a victory for Lunn and the progressive lawyers who brought it — including those from the state Committee for Public Counsel Services and the ACLU of Massachusetts — but also a powerful statement about the sovereignty of the Commonwealth of Massachusetts. If the federal government continues to pursue the agenda it has set forth over the past six months, then attorneys on the left are likely to seek many similar assertions of independence by state courts in the years ahead.

Daniel Medwed is WGBH's legal analyst and a professor of law and criminal justice at Northeastern University. His most recent book, Wrongful Convictions and the DNA Revolution, was published in April.

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