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The most anticipated provisions of Massachusetts PROTECT Act, which aims to counter the Trump administration’s mass deportation campaign, are scheduled to go into effect Nov. 3.
Section 12 of the legislation, signed by Gov. Maura Healey Aug. 5, prohibits federal agents from making civil immigration arrests in state courthouses without judicial warrants. Yet many legal experts are concerned about how effective that part of the law could be.
“I think those provisions in the act are more symbolic than real,” said Peter Margulies, a law professor at Roger Williams University who specializes in immigration law. “Those provisions are likely unconstitutional under the U.S. Constitution.”
A representative from the Massachusetts Immigrant and Refugee Advocacy Coalition, which led the charge to pass the PROTECT Act, also acknowledges the concerns.
“I do think that there is skepticism, and rightfully so,” said Gil Calderin, director of advocacy at MIRA. “This is true whenever you’re entering uncharted territory.”
Indeed, the very premise of the law — a state effort to counteract federal government action — could bring it into conflict with the U.S. Constitution.
Courthouse provisions
State courthouses have become frequent locations of U.S. Immigration and Customs Enforcement arrests during President Donald Trump’s deportation campaign.
In New Bedford, ICE has arrested at least 10 immigrants inside the District Court building this year‚ up from eight when The Light reported on the question in August.
“People are afraid to go to court, to testify, as victims and witnesses,” Healey said at a news conference in January. “This is all making us less safe.”
Section 12 prohibits all civil immigration arrests in courthouses without a judicial warrant and any arrests at all in courtrooms. It says any such action will be viewed as false imprisonment under state law. It allows the state attorney general to pursue civil litigation against ICE for violations at the office’s discretion.
Yet that may be a challenge, according to one expert.
“Requiring [ICE agents] to jump through hoops that federal law doesn’t require would be an overreach,” Margulies said. “It would be an assertion of state authority that is barred by the U.S. Constitution.”
Margulies pointed to the U.S. Constitution’s Supremacy Clause, which prohibits states from making laws that impede federal action. He said the federal government may challenge the law, either in court or by ignoring it. Though federal agents do need a judicial warrant to enter a private space, courthouses are public, he added.
The PROTECT Act also does not “require” a court or law enforcement officer “to interfere with or assist the actions of a federal official engaged in civil immigration enforcement.”
Magulies said that line points to an awareness from lawmakers that Section 12 dances perilously close to a constitutional violation.
In September, the Massachusetts Trial Court issued new guidance about interactions with ICE, set to take effect on Nov. 3, the same day as Section 12. The guidance goes further than the law, stating “Trial Court employees shall not under any circumstances interfere with or assist” ICE’s civil arrests.
“That means if an ICE officer comes to a courthouse and has only an administrative warrant … no state official or local official can say: ‘Well, that’s not enough,’” Margulies said. “The state doesn’t want to make its officials liable for obstruction of justice.”
Calderin, of MIRA, said that such concerns about the enforceability of the law “are valid.” He said the experiences of states that established similar laws, like Connecticut, could provide some answers.
“Rather than invoking their state laws, they’re continuing to battle this in federal district courts,” he said.
He also found comfort in the law’s civil litigation provisions and its requirement that trial court security must record civil immigration arrests at courthouses and provide a report to the Legislature and public about them annually by July 1.
“We’re hopeful that state trial courts will enforce their part of this as part of the law,” Calderin said.
Attorney General Andrea Campbell declined a request by The Light for an interview but sent a statement.
“The PROTECT Act strengthens protections for our residents in the face of the aggressive tactics employed by ICE,” Campbell’s statement said. “Tactics that do not enhance public safety and instead spread fear among families and our communities.
“Immigrants are an essential part of our communities, workplaces, and economy, and we will continue to use every tool available to defend their rights,” she concluded.
Other PROTECT Act provisions
The PROTECT Act also required Campbell to issue legal guidance to schools, healthcare facilities, and state property on how to navigate an interaction with federal agents carrying out civil immigration enforcement there.
The guidance includes: the designation of on-site contact people if officers performing civil immigration enforcement appear; procedures in case situations escalate; training to distinguish a judicial warrant from an administrative warrant; drills for when such an action takes place nearby, and more.
During an ICE surge in New Bedford on Sept. 21 and 22 — part of a three-day operation in the South Coast that resulted in the detention of 82 people, according to the agency — agents were spotted near schools. That prompted procedures for civil disturbances to be implemented.
The Light identified 35 of those detained on the South Coast shortly after their arrests. It was able to review statewide court records for 23 of the men and found that only four of the 23 men had criminal charges on their records in Massachusetts. An ICE news release identified only seven men of the 82, and claimed that seven of those had criminal charges on their records.
“This week, New Bedford saw the MA PROTECT Act up close,” New Bedford Public Schools Supt. Andrew O’Leary said in a social media post during the September ICE operations. He said that New Bedford Public Schools already had such procedures in place “for at least two years” and that the system’s experiences during the surge demonstrated why the PROTECT Act’s requirements for school plans were necessary.
On Oct. 5, the School Committee made the guidelines official policy in a near unanimous vote, with only Chris Cotter voting against.
But as the Nov. 3 date for the courthouse provisions arrives, the question remains: What will the federal government do?
“We’re thrilled that these protections will come into place,” said Calderin of MIRA. “And the hope is that these federal agents will follow state law.”
Kevin G. Andrade can be contacted at kandrade@newbedfordlight.org.
Again taxpayer dollars used for Illegals, while Veterans, Seniors, Families, Children, and Hard Working Residents struggle to survive. These taxpayer dollars should be used to help with issues like high Home Heating and Utility Costs. After over 6 years if illegals are still undocumented and here illegally they need to be deported.