The Commonwealth Defends Its Sovereignty, but Not Its Officers, in Commonwealth v. Lunn

On Monday, July 24, 2017, the Supreme Judicial Court ruled in Commonwealth v. Lunn that Massachusetts law did not permit court officers to hold the plaintiff, Lunn, solely on the basis of a federal immigration detainer.[1] The ruling was a victory not only for Lunn, but for the Commonwealth as well, because of the somewhat unusual position the Attorney General had taken in the case. Rather than defend the officers’ authority to enforce the detainer, the AG agreed with the plaintiff and argued for the interpretation of Massachusetts law that the Court ultimately endorsed. As a result, the federal government, appearing as amicus curiae, was left to argue that the officers had inherent authority to enforce the detainer.

The AG’s position in Lunn might seem anomalous. Taking into account, however, the federal government’s recent efforts to involve states in immigration enforcement, the AG’s position reflects appropriate concern for the Commonwealth’s authority within a federal system. The Commonwealth, of course, is a sovereign, and under the Tenth Amendment, it cannot be forced to participate in the federal government’s immigration enforcement regime. Immigration detainers are voluntary requests, not mandatory orders. However, even as voluntary requests, detainers still touch on important aspects of the Commonwealth’s sovereignty by asking state and local law enforcement officers to divert resources toward helping federal officers take immigrants into custody. The AG’s position in Lunn, as well as the SJC’s opinion, evinces the belief that the Commonwealth should have the final say on whether its officers may agree to such an arrangement. The result is a uniform, Commonwealth-determined policy—one in which state and local law enforcement officers cannot enforce detainers on a case-by-case, or county-by-county, basis.

In addition to promoting state sovereignty, the AG’s position in Lunn also furthered her efforts to limit the current administration’s efforts to restrict immigration and enhance deportations. Last week, the AG joined a group of 20 State AGs in sending a letter to the President, urging him to uphold President Obama’s Deferred Action for Childhood Arrivals program, known by its acronym, DACA. And last month, the AG and 9 other State AGs sent a FOIA request to ICE and other federal agencies, asking for documents and information on the detention and removal of immigrants.

As the Lunn Court noted, its ruling does not prevent the Commonwealth from enacting legislation permitting its officers to enforce immigration detainers. The Court did not comment on whether such a law would be constitutional. The New York Times has reported that certain legislators have already begun drafting a bill. If it were to pass (currently believed to be unlikely) and then were challenged on constitutional grounds, the AG typically would be obligated to defend the law in court. Given the AG’s position in Lunn and statements in her brief on the “serious [constitutional] questions” raised by detainers, we will need to wait to learn whether AG Healey declines to defend and instead appoints a Special Assistant Attorney General.

[1] An immigration detainer is a formal request from ICE—the federal agency in charge of immigration enforcement—to a state or local law enforcement agency, asking that the agency keep someone in custody who ICE suspects is a removable immigrant. For more information on immigration detainers and the ruling in Commonwealth v. Lunn, see Foley Hoag’s recent practice alert.