The Department of Justice has moved to enter a Minnesota assault case on the side of the defendant. Hennepin County charged Immigration and Customs Enforcement (ICE) agent Gregory Donnell Morgan Jr. with two counts of second-degree assault for allegedly pointing his gun at two motorists. Morgan sought to move the case to federal court, claiming his conduct was “necessary and proper in the performance of his federal duties.” The county filed its opposition, and the Department of Justice appeared on Morgan’s side. Administration officials describe the immunity as absolute. Nothing in the US Constitution, in any federal statute, or in the case law says that.
The Supremacy Clause is Article VI, Clause 2 of the US Constitution. The clause makes the Constitution and federal laws “made in Pursuance thereof” part of “the supreme Law of the Land.” The Supremacy Clause states that constitutionally valid federal law takes precedence over conflicting state law. Alexander Hamilton addressed this in Federalist 33. Federal acts “which are NOT PURSUANT to its constitutional powers” are not supreme law. He called them “merely acts of usurpation” that “deserve to be treated as such.” A federal action counter to the Constitution is void. Otherwise how could we have the Tenth Amendment, which reserves to the states or the people powers neither delegated to the federal government nor prohibited to the states? Supremacy Clause immunity is a defense raised against state criminal charges brought against federal agents for acts committed on duty.
In Gamble v. United States the Supreme Court reaffirmed that a state and the federal government are separate sovereigns, and each one enforces its own criminal law. State criminal law applies to every person inside the state, and federal employment does not remove a person from state jurisdiction. A president cannot erase the result either, because Article II reaches only offenses against the United States. A president cannot pardon a state conviction.
Nowhere in US jurisprudence, Supreme Court rulings, the Constitution, US law, or statutes will you see a claim of blanket criminal immunity for federal agents or federal officers resulting from their conduct occurring on duty.
The founders condemned protections for royal officials accused of crimes. Parliament’s Administration of Justice Act of 1774 let the royal governor of Massachusetts move the trials of crown officers charged with capital crimes to another colony or to Great Britain, and the colonists called it the Murder Act. The Declaration of Independence lists the practice among the causes of revolution: the king protected his armed troops “by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.”
In re Neagle set a standard test for determining whether an agent’s conduct is covered by Supremacy Clause immunity, the authorized-and-necessary test: the act must be one federal law authorized the agent to perform, and the agent must have done no more than was necessary and proper in performing it. The existence of that test alone is implicit evidence that there is no blanket immunity; otherwise, a test would not be necessary to determine if conduct was covered or not. This article argues that the ruling was overly generous and has been pushed further and further to the point of functioning as the blanket immunity the case never created.
28 U.S.C. 1442 permits removal to federal court, but removal does not itself grant criminal immunity.
In the Michigan prosecution arising from Samuel Sterling’s death, the court drew on Graham v. Connor, a 1989 decision establishing the Fourth Amendment standard for excessive force during an arrest or investigatory stop. Graham tells a court to judge force from the viewpoint of a reasonable officer on the scene, allowing for split-second decisions. After an evidentiary hearing, the US District Court for the Western District of Michigan dismissed the charges against task force officer Brian Keely, finding insufficient evidence to create a genuine dispute over whether he acted under federal authority and did no more than was necessary and proper.
Courts stop reading halfway through the clause’s sentence. The supremacy registers; the condition, made in Pursuance thereof, does not. Why aren’t courts just asking whether the agent violated state law and whether the conduct was in pursuance of the Constitution? Immunity is an exception to the state’s criminal power, the agent is the one claiming the exception, and, under the test I propose, the agent should carry the burden of showing where the exception comes from. The only source is the Supremacy Clause, and the clause makes federal statutes supreme only when made in pursuance of the Constitution. So the court should ask two questions. Was the conduct in pursuance of the Constitution? Did the conduct violate state law? I call this the pursuance test. A criminal act is a criminal act. A federal statute outside the constitutional powers does not supply the needed support, and neither does an order, a policy, or a supervisor. An unconstitutional execution of a valid statute fails the same way. Bradford Clark of George Washington University Law School argued in The Supremacy Clause as a Constraint on Federal Power, published in the George Washington Law Review, that the clause makes supreme only pursuant laws, and that a statute failing the condition leaves courts free to apply state law. The pursuance test asks the same question about conduct. When Justice Holmes wrote in Johnson v. Maryland that state law will not control a marshal “acting under and in pursuance of the laws of the United States,” he presupposed valid law, because the clause makes nothing else supreme. Constitutional protections are not confined to citizens, so an agent violating an immigrant’s rights fails the test the same as one violating yours. And nothing here strikes down any federal law. The statute remains in force; the agent stands trial. McCulloch v. Maryland protects valid federal functions from state interference, and usurpation is not a federal function, so a prosecution for unconstitutional conduct interferes with nothing.
Stephen Miller told ICE agents on television that “you have federal immunity in the conduct of your duties.” Steve Vladeck, a constitutional law professor at Georgetown, called it “wrong on its face.” Vice President JD Vance described the ICE officer who shot Renee Good as protected by “absolute immunity.” Deputy Attorney General Todd Blanche stated the absolute claim as a legal position.
Minnesota has also charged ICE agent Christian Castro for shooting Julio Sosa-Celis, a Colorado district attorney has charged a federal immigration officer with assault, and Maine’s attorney general opened the state’s independent investigation into an ICE agent’s fatal shooting in Biddeford. An ICE officer also shot and wounded a man in Austin, Texas, on Sept. 20. US Rep. Greg Casar called for an independent investigation and demanded that federal authorities preserve and share evidence with state and local law enforcement. Was the conduct in pursuance of the Constitution? Did the conduct violate state law? Their game is the federal forum, where immunity can end a prosecution before trial. The pursuance test declines the game. A government that wants its agents protected from state criminal law can secure that protection by ensuring that its agents act within the Constitution.
Christopher Armitage is the founder and publisher of The Existentialist Republic.
