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We’ve Seen Federal Aggression With 'Illegals' Before — During Slavery

District Court Judge Shelley M. Richmond Joseph, center, departs federal court, Thursday, April 25, 2019, in Boston after facing obstruction of justice charges. (Steven Senne/AP)
District Court Judge Shelley M. Richmond Joseph, center, departs federal court, Thursday, April 25, 2019, in Boston after facing obstruction of justice charges. (Steven Senne/AP)

Federal officials roaming the states, seizing persons deemed “illegal” under federal law, detaining them, transporting them elsewhere. States objecting; communities declaring themselves “sanctuary cities.”

This narrative did not begin with the Trump administration’s immigration enforcement. It hearkens to an earlier time, an infamous chapter of American history.

Once before, residents of Massachusetts and other northern states were deemed “illegal” under federal law, rounded up by federal authorities and shipped south — to the slave states whence they had escaped. While slavery disappeared from Massachusetts soon after the republic was founded, it survived in many southern states. Free or not, Massachusetts citizens were subject to federal law, and that meant the reach of the federal Fugitive Slave Acts, a pair of laws passed in 1793 and 1850.

[T]he federal government cannot conscript agencies of state government to carry out federal law.

For enforcement, the first act relied on state officers. According to the Supreme Court, that violated one of the least-known amendments in our Bill of Rights: the 10th Amendment, which provides that all those rights not specifically delegated by the Constitution to the federal government are reserved to the states and the people. It means the federal government cannot conscript agencies of state government to carry out federal law. Courts refer to this as the “anti-commandeering doctrine.”

Just last year, Justice Alito explained that the 10th Amendment is “the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the states.”

Two hundred years later, that structure is again being tested, as a Massachusetts judge is prosecuted for not cooperating with federal immigration enforcement.

In April, a man — A.S., the government calls him — was brought to a Massachusetts courthouse to answer for a Massachusetts offense. The courthouse was the Newton District Court, and Newton, as it happens, is a sanctuary city.  The judge, Shelley Richmond Joseph, was appointed to administer the laws of our commonwealth on the property of our commonwealth.

A.S.’s matter before our court had nothing to do with immigration — it was a routine part of the public business of the state. But federal agents say that A.S. is an “illegal” — an immigrant — and they see state courthouses as good hunting grounds. Wait for defendants to come where they must, and then take aim. So the agents waited in the courthouse for A.S. to finish his case. How would Judge Joseph strike the balance in the case in before her, neither obstructing agents of U.S. Immigration and Customs Enforcement (ICE) from going about their business, nor furnishing our state courthouse as a deer stand?

The facts remain unclear, but the allegations suggest Judge Joseph acted neutrally, without favor for A.S. or federal immigration agents.

Andrew Lelling, the U.S. attorney for Massachusetts, indicted Judge Joseph, accusing her of conspiring to allow A.S. to leave her courthouse by a rear door onto the public streets of Newton. Once on the public streets, A.S. would again be subject to federal enforcement, as he was before he entered Joseph’s court. (In fact, A.S. was apprehended by ICE in short order.) She would not obstruct the federal government, but neither would she be commandeered.

[Judge Joseph] would not obstruct the federal government, but neither would she be commandeered.

For this Judge Joseph has been criminally charged. Today she faces the full firepower of federal law enforcement, a felony conviction and possible imprisonment. But declining to furnish state courthouses for the capture of an immigrant on ICE’s detainer list can be “obstruction” only if we ignore the constitutional structure that Justice Alito described.

The right she vindicated — assuming Judge Joseph did what she is accused of — was the commonwealth’s right not to be commandeered by federal authorities, and the people’s right to a state government that is not the enforcement tool of a regime they deem oppressive.

Today, we view the Fugitive Slave Acts with contempt. Perhaps — soon, it is hoped — we will feel the same about the federal government’s overreach here.

Judge Nancy Gertner retired from the federal bench in 2011 and joined the faculty at Harvard Law School. P. Sabin Willett practices law in Boston.

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