Minnesota and Illinois invoke the 10th amendment in lawsuits to block federal agents in their cities. Here’s why that matters

Officials in Minnesota and Illinois filed lawsuits within hours of each other Monday seeking to curb the Trump administration’s ongoing immigration crackdown in their states.

Although the lawsuits are separate and nuanced, both states cited the 10th Amendment to back their claim that the surge of Immigration and Customs Enforcement and Border Patrol agents – which has stoked nationwide protests, as well as violence and fear in their cities – is tantamount to federal overreach and a violation of their state’s sovereignty.

Minnesota Attorney General Keith Ellison has said his office believes the surge in federal agents is a violation of the 10th amendment, which establishes the division of powers between the state and federal government.

“The Constitution gives Minnesota the sovereign authority to protect (the) health and wellbeing of every single person who lives in our borders,” Ellison said at a Monday news conference announcing the lawsuit.

“We’re going to defend those rights because – as much as they like to believe it – DHS (Department of Homeland Security) is not above the law, and the people of Minnesota are certainly not beneath it.”

Illinois Gov. JB Pritzker went a step further in his remarks about his state’s lawsuit, claiming Illinois will hold President Donald Trump and his administration “accountable for their unlawful tactics, unnecessary escalations, and flagrant abuses of power.”

Trump and his administration have said the Constitution gives the federal government broad authority to enforce national immigration laws as the government sees fit.

In a lengthy statement posted on Truth Social Tuesday, Trump defended ICE tactics and declared, “FEAR NOT, GREAT PEOPLE OF MINNESOTA, THE DAY OF RECKONING & RETRIBUTION IS COMING!”

But constitutional law experts told CNN the pair of lawsuits have essentially pitted the states’ rights to self-govern and protect their citizens against the federal government’s ability to enforce immigration policy within the nation’s borders.

And it opens the door for a new interpretation of an amendment central to the Bill of Rights, experts say.

The dividing line between state and federal government

Michele Goodwin, professor of constitutional law at Georgetown University, said understanding the significance of Illinois and Minnesota’s lawsuits begins with understanding the importance of the Bill of Rights and the 10th Amendment.

“The Bill of Rights was intended to protect these new Americans, these people who have fled the worst of political oversteps in the United Kingdom,” she said. “(It) was intended to protect individuals against overreach, against abuses of power by government.”

The First Amendment establishes fundamental freedoms of speech, press, religion, and peaceful assembly. It also protects the right to petition the government – or formally ask the government to make changes without fear of punishment – and prevents Congress from making laws that trample on these rights.

Subsequent amendments, Goodwin said, build on these protections to further enumerate the rights of citizens and protect against government overreach.

But the 10th Amendment is unique, according to Goodwin, because it establishes the division of power between the state and federal government, which is also known as “federalism.”

The 10th Amendment states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

To understand this, Goodwin said, it helps to remember that at the time the Bill of Rights was written states in many ways were like independent countries that consented to be ruled under a federal system.

In essence, Goodwin said, the 10th Amendment established that states retain sovereign power to make local laws and govern within their borders and the federal government could not impose its will over a state, unless that authority has been granted by Congress or the Constitution.

This enabled states to create, control and regulate everything from state education systems and their local police force to election regulations and zoning laws, Goodwin said.

But now, more than 230 years after the 10th Amendment was ratified, both Minnesota and Illinois are alleging the federal surge of ICE and Border Patrol agents is preventing state and local officials from effectively governing and ensuring the safety of their residents.

Craig Futterman, a clinical law professor at the University of Chicago said while there’s no doubt that federal government has the right to enforce immigration laws, it remains to be seen whether the courts will accept Illinois and Minnesota’s interpretation of the 10th Amendment.

“What the state’s theories are, both in Minnesota and in Illinois, is that the federal government is using immigration laws as a ruse to target (Democratic-led) states and cities to retaliate against them and interfere with their local policies; to interfere with their sovereignty,” he said.

In its lawsuit, Minnesota argues the administration’s “aggressive and militarized surge interferes with the ability of state and local law enforcement to address crime and protect residents’ health, welfare and safety.”

Illinois officials also allege the DHS “incursion” into the state “and their unlawful and violent tactics, have disrupted the lives and undermined the liberties and property rights of the people, injuring Illinois’ and Chicago’s sovereign and proprietary interests.”

Chicago, as well as Minneapolis and Saint Paul, are also plaintiffs in the lawsuits against the Trump administration.

In their lawsuits, the states and cities have argued that in addition to infringing on their sovereignty established in the 10th Amendment, the Trump administration’s actions are punitive and designed to “coerce” state and local officials into adopting the administration’s policies.

Both states are asking, in essence, for the courts to block ICE from enforcing some immigration law, based on the 10th Amendment. Legal experts agree it’s a novel approach to a centuries old law.

“It doesn’t necessarily mean that what is being argued is something that will be recognized by a federal judge or the Supreme Court,” Goodwin said.

“Some of what we see taking shape is what one might call ‘cases of first impression,’” she added, which “means we’ve not seen this before, so it’s the first time that the court is having to deal with this.”

Before the Civil Rights Movement, Futterman said, southern states would invoke the 10th Amendment to argue they had the sovereign right to maintain segregation within their borders.

But, Goodwin noted, the passage of the Civil Rights Act of 1964 granted the federal government the authority to pursue and enforce equality for all people under the law, effectively overriding states’ sovereignty over the issue of segregation.

Both Futterman and Goodwin agree the Minnesota and Illinois lawsuits present a unique approach to common applications of the 10th Amendment.

“It feels like the politics are being flipped. Traditionally state’s rights arguments have been launched often as a defense to federal attempts to enforce civil rights laws to ensure equal protection for all people under the law,” Futterman said.

“And here states are saying ‘Hey what’s going on is the opposite – it’s the federal government that’s actually targeting states for protecting vulnerable populations.’”

“These kinds of cases and lawsuits don’t emerge every day.”