Consider the following:
A family is involved in a car accident. A man assists, making sure everyone is safe. But when the police arrive, the kind man disappears. The family learns that he refuses to serve as a witness because he does not have documentation to be in this country despite living here since his student visa expired 18 years ago. He has a family to care for; he fears the same fate as others in his community who have been detained by U.S. Immigration and Customs Enforcement in the courthouse.
A woman from Mexico is married to a U.S. citizen who is abusive. He owns a gun and has threatened her with it. She believes him when he threatens to kill her. Now she is pregnant and he has beaten her. The emergency room social worker has suggested she get a restraining order. She is afraid of contacting the authorities and going to court for a restraining order because she is afraid of being detained by ICE.
Incidents like these happen every day. Human trafficking victims, domestic violence victims and many other victims and potential witnesses in civil and criminal cases are afraid to take the stand or interact with authorities. ICE, with its strategy of detaining immigrants at state courthouses, has created this fear.
If this seems wrong, it is because it violates a foundational principle, An ancient common law protects individuals who have business in the courthouse by making them immune from arrest or even from being served with legal process when participating in the judicial process. Indeed, this immunity has been recognized within the constitutional imperative of providing access to the courts. The reason for this rule is to protect our judicial processes and to protect access to justice for all.
The Office of Inspector General has written scathing reports about ICE, including its failure to comply with the Constitution, human rights and its own policies. Nonprofit organizations and media outlets have described ICE abuses. Immigrants rarely file lawsuits to challenge ICE officers’ conduct. I believe this has led ICE to forego adequate training and to skirt the law and Constitution. The inflammatory rhetoric coming from the current president and the cruel policy directions he has pushed have made the situation even worse.
The U.S. Constitution governs all federal and state action. The Supremacy Clause of the Constitution resolves state and federal laws that conflict in favor of federal law. That does not mean, however, that federal officials can violate state law and individual rights; they must comply with constitutional and state restrictions except in limited circumstances pertaining to the necessary and proper exercise of their federal duty.
We must limit outrageous ICE activities that defy our constitutional and foundational principles. It would be better for our nation if ICE limited itself or if Congress placed clear limits on ICE enforcement activities. Indeed, a federal judge in Massachusetts recently entered a restraining order restricting ICE from detaining individuals at state courthouses throughout the state of Massachusetts.
Every state has the obligation to govern. This includes the sovereign right to operate a judicial system that is open to all people to resolve disputes. If we fail to make our courts accessible to everyone in the state, we invite violence and self-help solutions that make all of us less safe. Under our federal system, states can protect our communities from ICE’s excesses. Indeed, in swearing to uphold the Constitution of the United States and the state of New Mexico, we state officials have a duty to do so.
Antoinette Sedillo Lopez is a New Mexico state senator representing District 16.