ICE and the Tenth Amendment: The Borders between Federal Power and States’ Rights

In recent months, the state of Minnesota has been catapulted to the forefront of national attention, reeling from a particularly forceful immigration crackdown. On January 12, 2026, the State of Minnesota, the City of Minneapolis, and the City of St. Paul filed suit in the District Court of Minnesota against the Department of Homeland Security [1]. Despite the February 12 announcement by President Trump’s border czar Tom Homan, which declared the end of “Operation Metro Surge,” a surge of 3,000 Immigration and Customs Enforcement (ICE) agents, questions regarding federal authority to conduct such an operation remain [2]. Minnesota’s lawsuit rests on Tenth Amendment claims by the state, hinging on the extent of federal power and whether the federal government’s actions through ICE amount to an infringement on Minnesota’s state sovereignty. The case raises the question of how — or whether — states can effectively resist purported federal overreach generally, or whether instances of misconduct can only be addressed retroactively through individual cases. In this article, I argue that although Minnesota’s Tenth Amendment argument appears intuitively compelling, the courts are wise to avoid meeting unprecedented actions with unprecedented rulings, and thus have been correct to reject the state’s challenge. At the same time, judicial restraint should not preclude broader reform to ensure that the judiciary can more effectively check questionably exercised federal power. The courts should instead reconsider revitalizing federal accountability efforts by strengthening tort law and creating alternative remedial paths to hold federal agents accountable.
At its core, Minnesota’s lawsuit hinges on the anti-commandeering doctrine of the Tenth Amendment. The origin of the doctrine lies in New York v. United States (1992), in which the Court overturned a provision of Congress’s Low-Level Radioactive Waste Policy Amendments Act of 1985, which required states to assume legal liability for low-level waste if they failed to comply by joining a regional waste compact or creating a disposal site within a specified period [3]. The New York ruling held that Congress could not “commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program [4], a holding that was reinforced in 1997 in Printz v. United States. There, the Court found the provision of the Brady Handgun Violence Prevention Act mandating state and local officials to perform background checks on prospective gun purchasers unconstitutional, holding that “[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers … to administer or enforce a federal regulatory program,” adding that “such commands are fundamentally incompatible with our constitutional system of dual sovereignty” [5].
Since New York and Printz, substantial case law has accumulated around the anti-commandeering doctrine. However, the harms Minnesota alleges do not align with the circumstances in which the doctrine has historically been invoked. In particular, the doctrine has thus far been limited to legislative coercion, with precedent dealing exclusively with Congressional acts and the interplay between federal and state legislative powers. New York and Printz both invoke anti-commandeering in the context of “administer[ing] or enforc[ing] a federal regulatory program” [5]. Later cases that built on these foundational precedents continued to emphasize the question of whether states have a choice to comply with federal legislative mandates [4]. In contrast, in Minnesota’s case, the actions of ICE stem from executive rather than legislative authority and, more importantly, bear only a tenuous connection to any pressure on states to comply with federal regulation. The lawsuit explicitly mentions commandeering in two contexts: First, it describes federal law enforcement as commandeering “City property,” describing ICE agents’ actions as resulting in an “inability to offer essential City services, and… unnecessary expenditure of City resources,” and second, it proposes “an unlawful attempt to commandeer state and local law enforcement to assist federal agents in carrying out federal immigration laws” [2]. While both descriptions might be considered “commandeering” in an intuitive sense, they do not align with the narrower legal definition applied by the Court and therefore warrant scrutiny before applying anti-commandeering precedent.
Expanding the Court’s definition to encompass federal actions like that of Operation Metro Surge would introduce unacceptable ambiguities. First, federal regulatory schemes Congress enacted are qualitatively different from unilateral actions by executive agencies exercising enumerated federal powers. Operation Metro Surge qualifies as a law enforcement action, raising the question of how anti-commandeering challenges should be evaluated if a prohibition would directly interfere with the federal government’s ability to enforce federal law, rather than merely constraining legislative policy choices. Indeed, legal experts have argued that the lawsuit would functionally ask “a judge to block ICE from doing its job as it sees fit in [the] state” [6].
Additionally, measuring anti-commandeering in terms of federal intent to coerce would introduce significant practical difficulties into legal analysis, risking arbitrary or politicized interpretation. In fact, even under the extreme conditions that Minneapolis was subjected to, attempted coercion is immensely difficult to establish, given that Trump’s political interests in Minnesota extend far beyond immigration compliance. Minneapolis Mayor Jacob Frey has himself described the state as being strategically targeted by Trump for “political retribution” against the state’s strong Democratic leaning and cultural attitudes regarding immigration and race [7]. Establishing a direct causal relationship between Operation Metro Surge and a primary objective to coerce state agencies would thus require substantially more evidence than Minnesota can likely provide. As some analysts conclude, “it is hard to take seriously the notion that Governor Walz or Mayor Frey could have avoided this operation, or could even end it now, by agreeing to assist ICE” [8]. Indeed, this uncertainty precisely reflects the reasoning of Judge Katherine Menendez in her rejection of a preliminary injunction in January, when she wrote, “Quantitatively, Plaintiffs cannot point to what number of federal officers would demonstrate a de facto Tenth Amendment anticommandeering violation. Qualitatively, there is no clear way for the Court to determine at what point Defendants’ alleged unlawful actions … becomes so problematic that they amount to unconstitutional coercion and an infringement on Minnesota’s state sovereignty” [9]. She concluded that there is “no precedent for a court to micromanage” such determinations [9]. Thus, even if the lawsuit were to present a compelling case with evidence of commandeering, the broader tension between the bar for coercion and the baseline for legitimate federal actions, as well as the associated risk of subjective interpretation, still render an expanded interpretation of anti-commandeering as imprudent for the Court to adopt.
The weakness in the applicability of the anti-commandeering doctrine to Minnesota’s lawsuit is not to say that the federal government — and executive agencies in particular — should not be held accountable for likely violations of state authority and individual rights. Although Congress has historically adopted a reluctant view toward other meaningful mechanisms for states to hold federal agents and officers accountable, given the uncertainty of Tenth Amendment claims, alternative avenues for legal recourse must be reconsidered and revitalized. Congress could address this accountability gap by creating statutes that strengthen remedial avenues against federal officers for violations of constitutional rights. Tort law has a complex history that has often limited suits against federal officials through state tort statutes, the Federal Tort Claims Act, and the Supreme Court’s Bivens ruling [10]. But even now, bills aiming to expand and clarify accountability for federal law enforcement already exist [11]. The question is certainly one of political will, but the absence of political will should not justify judicial overstep as a substitute.
Ultimately, the anti-commandeering doctrine cannot be readily applied to the Minnesota lawsuit without requiring the Court to assess the motivations of the federal government. Motivation, however, is an inevitably political question; allowing (or burdening) the judiciary to assume the responsibility of determining intent, particularly in cases in which the intent to be determined requires weighing particular manifestations of legitimate legal authority with vague and unstandardized metrics for coercion, would threaten to destabilize the independence of the branches. The solution to imbalances in one realm of the law ought not to be to introduce imbalances in another.

[1] United States District Court for the District of Minnesota, “00190 DHS Complaint,” The Office of Minnesota Attorney General Keith Ellison, January 12, 2026. https://www.ag.state.mn.us/Office/Communications/2026/docs/00190_DHS_Complaint.pdf.
[2] Alyssa Chen, “The End of Operation Metro Surge, in Data • Minnesota Reformer,” Minnesota Reformer, February 23, 2026. https://minnesotareformer.com/2026/02/23/the-end-of-operation-metro-surge-in-data/.
[3] New York v. United States, 505 U.S. 144 (1992).
[4] Library of Congress, “Anti-Commandeering Doctrine | Constitution Annotated,” Congress.gov, 2018. https://constitution.congress.gov/browse/essay/amdt10-4-2/ALDE_00013627/.
[5] Printz v. United States, 521 U.S. 898 (1997).
[6] Gainor, Danya, “Why This Legal Expert Says the Minnesota and Illinois Immigration Lawsuits ‘Are close to Completely Meritless,’” CNN, January 14, 2026. https://www.cnn.com/2026/01/14/us/illinois-minnesota-suing-trump-lawsuit.
[7] Rachel Leingang, “What Is It about Minnesota That Made It a Target for Trump’s ICE Crackdown?” The Guardian, February 14, 2026. https://www.theguardian.com/us-news/2026/feb/14/why-minnesota-ice-crackdown-trump.
[8] https://law.marquette.edu/facultyblog/2026/02/federalism-by-extortion-comes-to-minneapolis/
[9] Ilya Somin, “Does the ICE Crackdown in Minnesota Violate the Tenth Amendment?” State Court Report, February 2, 2026. https://statecourtreport.org/our-work/analysis-opinion/does-ice-crackdown-minnesota-violate-tenth-amendment.
[10] Steve, Vladeck, “204. Accountability after Minneapolis,” One First, January 24, 2026. https://www.stevevladeck.com/p/204-accountability-after-minneapolis.
[11] Congress.gov, “S. 3470 – 119th Congress (2025-2026): Accountability for Federal Law Enforcement Act,” December 15, 2025. https://www.congress.gov/bill/119th-congress/senate-bill/3470.