Constitutional lawyers say a lawsuit the Trump administration filed last week to challenge immigration enforcement policies in Colorado and Denver has little chance of success if the courts follow past rulings in similar cases.
But that may not be the goal, they say.
“By using litigation as a way to inflict pain, one might accomplish policy goals even if you end up losing,” said Martin Katz, a professor who teaches constitutional law at the University of Denver.
The Colorado lawsuit, similar to one launched three months ago against local and state governments in Chicago, was filed Friday in U.S. District Court against Gov. Jared Polis, Attorney General Phil Weiser, Denver Mayor Mike Johnston and other city officials. President Donald Trump’s Department of Justice takes issue with laws at the local and state levels.
Colorado lawmakers have passed three laws in recent years that limit cooperation with U.S. Immigration and Customs Enforcement officers. The most impactful one, passed in 2019, prevents local law enforcement from arresting people because of their immigration status, holding them in jail past their releases to help ICE or providing information about someone’s immigration status.
In 2017, the Denver City Council passed an ordinance with similar limitations, including barring city employees from collecting information on people’s immigration status. Then-Mayor Michael Hancock also signed an executive order declaring Denver a “safe and welcoming city for all.”
The DOJ’s lawyers primarily argue that the laws and policies violate a keystone clause of the U.S. Constitution.
“This is a suit to put an end to those disastrous policies and restore the supremacy of federal immigration law,” according to the lawsuit.
Under the supremacy clause, if there is a conflict between federal and state governments, judges must prioritize federal laws. But Katz and other constitutional lawyers told The Denver Post that it doesn’t mean states are required to use their own resources to enforce federal laws.
“There is a difference between active interference and failure to help,” Katz said.
Comparisons with marijuana laws
If the Justice Department tries to convince a judge that the state and city laws actively interfere with enforcement, they will face a task that’s “tough, to the point of impossible,” Katz said.
It’s similar to the reason why retailers can sell marijuana in Colorado and many other states, even though it remains federally illegal, said Deep Gulasekaram, a University of Colorado Boulder law professor specializing in constitutional and immigration law.
“If the federal government wants to send FBI agents to enforce its marijuana possession laws … there is absolutely nothing that Colorado authorities can do,” Gulasekaram said. “What it can’t do is write a federal law and then expect to not use federal resources (to enforce them).”
In their response to the lawsuit, the city and the state will likely cite a 1997 U.S. Supreme Court ruling over gun background checks, Gulasekaram said.
Several years earlier, when congressional Democrats led the passage of the bipartisan Brady Handgun Violence Prevention Act, they required local authorities to perform background checks for firearm buyers. But following a legal challenge by county sheriffs in Montana and Arizona, the Supreme Court ruled this was a violation of states’ rights.
“Although the states surrendered many of their powers to the new federal government, they retained ‘a residuary and inviolable sovereignty,’ ” then-Justice Antonin Scalia wrote in the majority opinion.
Colorado Gov. Jared Polis, front, hugs Denver Mayor Mike Johnston next to Colorado Secretary of State Jena Griswold, right, before delivering the 2024 State of the State address to a joint session of the legislature in the House chamber at the State Capitol in Denver on Thursday, Jan. 11, 2024. (Photo by Hyoung Chang/The Denver Post)That same logic could be used now to defend Denver and Colorado, Gulasekaram said.
So far, the city and the state have not shed light on what legal strategy they will pursue. But officials’ initial public statements have struck slightly different tones. Polis’ office said the state works with the federal government often and if a judge deems its laws invalid, they will respect the ruling. The mayor’s office was a bit more defiant, saying the city is ready to “defend its values.”
“Denver will not be bullied or blackmailed, least of all by an administration that has little regard for the law and even less for the truth,” according to a statement from Johnston’s office.
Legal experts suggested a major goal of the lawsuit is to change the way the courts interpret the supremacy clause. If a lower court disagrees with earlier rulings and says the local laws do violate the Constitution, such a ruling could result in a challenge making it all the way to the Supreme Court.
The administration also might just be aiming to create fear to deter other local and state governments from adopting similar policies, Katz said.
“No matter what,” he said, “(the lawsuit) is going to cost the city significant time and resources.”
Local laws ‘impede’ enforcement, DOJ argues
Denver and Colorado both deny being so-called sanctuary jurisdictions, arguing they do not interfere with federal enforcement activities.
But the DOJ argues that by restricting basic information sharing and access to their facilities, the city and state force ICE agents into more dangerous situations for arrests — sometimes resulting in no arrest at all.
“The sanctuary laws were enacted for the sole purpose of impeding the federal government’s ability to enforce immigration law and remove illegal aliens,” according to the lawsuit.
Denver notifies ICE when it plans to release someone under investigation by the agency from its custody. The agents aren’t allowed inside the jail, though. Earlier this year, that policy resulted in a foot chase in a northeast Denver jail’s parking lot between agents and a suspected Venezuelan gang member who was being released. The man bit one of the agents before he was cuffed.
The DOJ also argues that a judge should invalidate the laws because they discriminate against ICE agents and attempt to regulate the federal government.
The Justice Department filed a similar lawsuit against the city of Chicago, Cook County and the state of Illinois in February, asking a judge to strike down their policies limiting cooperation with ICE. Twenty-three states, including Ohio and Texas, filed an amicus brief in support of that lawsuit, according to a docket report. That case is still in progress.
Some Republican officials in Colorado, including U.S. Rep. Gabe Evans, have cheered the lawsuit.
“I have been screaming from the rooftops that Colorado’s sanctuary state laws are crippling local law enforcement and making families feel unsafe,” he wrote on social media.
The Colorado lawsuit came as the state legislature was wrapping up its annual legislative session. Polis, who had cautioned lawmakers against putting a larger target on the state’s back, is considering signing a bill that would expand the state’s limitations on cooperation with ICE officers.
Trump and congressional Republicans have put a spotlight on Colorado’s and Denver’s policies this year. Last month, the Department of Homeland Security said it would no longer pay out $24 million in grants awarded to the city when President Joe Biden was in office to help cover migrant sheltering costs.
During a hearing of the U.S. House Oversight and Government Reform Committee in March, some Republicans also threatened to criminally charge Johnston — who’d joined other cities’ mayors to testify — over the city’s policies.
U.S. District Court Judge Kathryn A. Starnella has set a scheduling hearing for Aug. 4 in the DOJ’s case against Colorado and Denver.
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