ARE JUDGES ABOVE THE LAW? OF COURSE NOT
INTRODUCTION AND OVERVIEW
On January 21st, 2025, Acting Deputy United States Attorney General Emil Bove issued an “all-hands” memorandum throwing down a gauntlet and reasserting the federal Executive Branch’s exclusive authority to enforce immigration law without interference from the political motivations of state and local actors in so-called “sanctuary” jurisdictions. The American people overwhelmingly voted to stop the out-of-control open borders policies of the Biden Administration and for the Trump administration to engage in a promised deportation initiative of individuals who have no legal right or basis to be in this country. The starting point would be criminal aliens who preyed upon our civil society by engaging in acts from larceny to murder and everything in between. Critical to any deportation effort is the ability to detain and remove such people from the interior. Deputy Attorney General Bove set forth what would await those who obstructed federal officials from enforcing federal law:
“The Supremacy Clause and other authorities require state and local actors to comply with the Executive Branch’s immigration enforcement initiatives. Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands and requests pursuant to, for example, the President’s extensive Article II authority with respect to foreign affairs and national security, the Immigration and Nationality Act, and the Alien Enemies Act. The U.S. Attorney’s Offices and litigating components of the Department of Justice shall investigate incidents involving any such misconduct for potential prosecution, including for obstructing federal functions in violation of 18 U.S.C. § 371 and violations of other statutes, such as 8 U.S.C. §§ 1324, 1373.”
Immigration officials must frequently operate in public places to detain such people pursuant to both judicial and administrative warrants, as removal is a civil matter. ICE administrative warrants may be used in any public place and are generated by agents specially trained in the concept of “probable cause” and in identification of those subject to removal. This is a species of civil probable cause to identify and remove. These are civil matters and are used in places where there is no reasonable expectation of privacy. If agents were to seize someone in their home where there is such expectation, or any place where there would be a privacy interest, a judicial warrant from a court would be required. In this case Judge Dugan had no idea what the law was and wrongfully insisted a judicial warrant would be needed for detention in a public place. This was wrong. The courthouse common areas and arguably the courtrooms themselves are public places as explained to the federal agents by the Chief Judge. The preferred places for such detentions of those who have committed crimes are the sally ports of jails and correctional facilities when such persons are released or in courthouses, which are undeniably public places. There is a strong safety interest in these venues, as in both, the subjects will be unarmed and unlikely to resist. On Friday, April 25th, FBI agents arrested Milwaukee, Wisconsin County Court Judge Hannah Dugan for obstructing the lawful detention of a subject, Eduardo Ruiz, charged with three counts of domestic battery and scheduled for an appearance. The chronology of the events of that day is set forth in the Criminal Complaint which was filed charging Judge Dugan with federal obstruction charges. It may be viewed here. With full knowledge that federal agents had authority to detain this individual Judge Dugan allowed the subject to exit, with his counsel, out of a restricted jury entrance. Despite her best efforts, federal agents secured this criminal after a foot pursuit, and he will be removed. Judges in Wisconsin are elected, and this Judge’s grandstanding to the electorate in the name of “due process” is a sham. The proper course of action would have been for the Judge to stay out of the way of the federal agents and let the subject raise any procedural objection to the manner of arrest in a proper federal proceeding, which he will have as a matter of right. That is “due process.” She, in my opinion, violated federal law. In a similar proceeding in Massachusetts in 2018, a judge was charged with obstructing federal agents who appeared in the courthouse to detain a criminal illegal. She allowed him to similarly exit out of her chambers. The federal criminal charges were dropped; however, a Judicial Misconduct Commission found that she had violated judicial canons by engaging in willful judicial misconduct and that she had held the judiciary up to disrepute. We saw a New Mexico judge arrested last week for hiding a wanted Tren de Aragua member in his home with full knowledge such persons were wanted by federal authorities. Unacceptable. If anyone knows the danger of taking the law into one’s own hands, it should be any judge sworn to uphold the law. Any judge sworn to office swears to uphold the Constitution, and from that document the Supremacy Clause follows. They know what they are doing and should pay the price like anyone else.
SOME BACKGROUND
In Arizona v. United States, 567 U.S. 387 (2012), the United States Supreme Court defined the dividing line between state and federal authority in the area of immigration enforcement. To its credit, Arizona had passed legislation empowering state law enforcement agents to directly enforce immigration law and to determine the immigration status of detained persons who were suspected of being undocumented. Understandably, Arizona had borne the economic brunt of illegal migration and had determined to augment federal authorities who might have been less vigorous in enforcement. Many of these measures were struck down by the Court, which, however, doubled down on encouraging a strong policy of cooperation and comity between state and federal authorities to ensure an orderly enforcement of the laws. The recognition of detainers and the ability to work with federal enforcement through specific agreements was encouraged as a recognized public policy of the United States. The determination of “Sanctuary Cities” to obstruct federal officials goes beyond a mere refusal to cooperate—it lands in the realm of obstruction.
The Court stated that:
“The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, § 8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U.S. 1, 10, 102 S.Ct. 2977, 73 2495*2495 L.Ed.2d 563. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U.S.C. § 1182; requires aliens to register with the Federal Government and to carry proof of status, §§ 1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, § 1324a; and specifies which aliens may be removed and the procedures for doing so, see § 1227. Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock.”
The Court continued:
“The Supremacy Clause gives Congress the power to pre-empt state law. A statute may contain an express pre-emption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U.S. 582, 592, 131 S.Ct. 1968, 1977, 179 L.Ed.2d 1031, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 115, 112 S.Ct. 2374, 120 L.Ed.2d 73. Intent can be inferred from a framework of regulation ‘so pervasive… that Congress left no room for the States to supplement it’ or where a ‘federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447. Second, state laws are preempted when they conflict with federal law, including when they stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
JUDGE DUGAN SHOULD HAVE READ FEDERAL LAW BEFORE GRANDSTANDING
18 U.S.C. Section 1071 sets forth as follows:
“Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined under this title or imprisoned not more than one year, or both; except that if the warrant or process issued on a charge of felony, or after conviction of such person of any offense, the punishment shall be a fine under this title, or imprisonment for not more than five years, or both.“
The Judge was charged with another obstruction offense, but this specific offense fits the conduct much more directly. In the Massachusetts case, the Biden Administration dropped the charges that were filed during Trump’s first term. That will not happen now, and we will see how this plays out. The Judge may claim that the federal agents did not have a judicial warrant, and she had authority to prevent unlawful detention in her courthouse. I fail to see how this will be an effective defense. She had no authority to obstruct the agents and would have to defer to federal proceedings where the detention may be challenged. She had no authority to challenge the validity of any federal warrant. She knew that, or at least should have.
CONCLUSION
Article II authority of the Executive in immigration enforcement and policy is vast. Trump’s Department of Justice is taking back the authority lost during the Biden Administration when interior enforcement was virtually nonexistent. Enforcement will take place in courthouses all over the country. Charging ANYONE who obstructs a federal officer acting on the presumptive authority of any warrant showing probable cause, administrative or judicial, will send a signal that yes, no one is above the law. The time to stop making heroes out of criminals and people who have no legal right to be here and vilifying those who seek to enforce the law is NOW.
Mike Imprevento
April 27th, 2025
