Loophole could let citizens hit ICE agents with barrage of lawsuits: expert

Constitutional scholar Akhil Reed Amar penned a legal review article nearly four decades ago in 1987 that lawyer and journalist Adam Liptak argued Monday could very well be the “key” to holding federal immigration agents accountable amid the ongoing and chaotic immigration enforcement operations.

“I think it was a good idea then, and it’s only taken more than half a lifetime for people to actually read the thing,” Amar told The New York Times reported Monday.

In the legal review article, titled “Of Sovereignty and Federalism,” Amar addressed the question of federal immunity. Federal officials, in most cases, are “almost impossible to sue” and enjoy far greater immunity than state and local officials, he wrote. This immunity is extended to the federal immigration officials currently carrying out chaotic immigration enforcement operations across the nation.

The solution, Amar proposed in his 1987 article, was for state lawmakers to authorize citizens to sue federal officials for violations to the Constitution, given that “the federal government may hesitate to create a cause of action against itself.”

“Sometimes the federal government will misbehave, and you can’t count on Congress always to rein the federal government in,” Amar told the Times.

“States can’t just generally regulate ICE conduct, because the federal government gets to regulate that. But states can provide remedies against federal officials when federal officials violate federal constitutional rights.”

Should states enact laws to authorize their citizens to sue federal officials for violating the Constitution, federal immigration officials could face a flurry of lawsuits, with many documented instances of federal immigration officials being accused of violating Americans’ and migrants’ Fourth Amendment rights, which prohibit unreasonable searches and seizures.

“In the spirit of federalism, not only can states experiment in this way, but doing so would likely lead Congress to address the problem, because it’s unlikely that Congress would want to leave a patchwork of different state regulations and different remedies,” Amar said.