This post is part of Challenging Precedent, a blog of the Stanford Center for Racial Justice examining race, law, and regulation in the Trump era.

“The Founding Fathers gave us a Constitution of checks and balances because they realized the inescapable lesson of history that no man or group of men can be safely entrusted with unlimited power.” – Declaration of Constitutional Principles, i.e., the Southern Manifesto

In the past year and a half, the Trump administration has deployed Immigration and Customs Enforcement (ICE) agents throughout the U.S. In many cities, ICE agents have been recorded using aggressive tactics against people the agents suspect to be undocumented immigrants. But, despite protests around the country, Homeland Security officials continue to defend ICE’s tactics and the Trump administration’s prioritization of deporting undocumented immigrants. With the federal government supporting ICE, federal authorities have shown little interest in investigating or prosecuting ICE agents who break the law.

As a result, many state and local officials have been taking action. State lawmakers have passed legislation creating private rights of action for people to sue federal agents for constitutional violations and recover monetary damages. Local prosecutors have threatened, and in some cases brought, criminal charges against ICE agents for their conduct. Other state legislatures have passed laws to stop state agencies from cooperating with ICE by refusing to provide access to state facilities or residents’ information. Some state legislatures have gone even further, with legislation seemingly attempting to regulate the conduct of federal agents—banning their use of masks or barring their presence near courthouses.

These state actions raise difficult federalism questions about how states can resist the federal government’s actions. Historically, states’ assertion of their rights has been invoked to resist federal civil rights efforts: protecting slavery against federal attempts at abolition and, more recently, fueling the South’s “Massive Resistance” movement against federal attempts to compel desegregation. At the same time, some have identified a throughline between President Trump’s federal immigration tactics and the historical racial animus of anti-abolitionist and segregationist states, suggesting the federal government’s current position also draws from that troubled legacy.

Today, as states attempt to assert their powers against the federal government’s aggressive immigration enforcement, it is worth considering: How much are the anti-ICE states’ toolkits the same as the segregationist states’ in the desegregation era? And will these tools be more or less effective than those historically used by the segregationist states?

State Criminal Prosecution of ICE Agents

While states may use their police powers to decide to prosecute individual ICE agents who engage in misconduct, there are significant limits.

State prosecutors today certainly seem to have an appetite for prosecuting ICE agents. Progressive prosecutors across the country recently formed the Fight Against Federal Overreach (FAFO) coalition, but have not yet announced what exact actions they will take. California officials have also publicly discussed the possibility of arresting ICE agents for violations of California law, but the U.S. Department of Justice quickly responded that such arrests would be illegal and threatened counter-prosecution of California officials. Most recently, Hennepin County prosecutors charged an ICE officer with assault for a January 2026 shooting in Minneapolis, the second federal officer charged in connection with that city’s immigration enforcement operations. Despite some state prosecutors’ willingness, this avenue is likely tricky for state success as Professor Robert Weisberg notes, largely because of Supremacy Clause immunity.

Supremacy Clause immunity for federal officers arose out of In re Neagle, where the Supreme Court found that a federal marshal who shot and killed a potential attacker in California was immune from prosecution by the state. The immunity applies where a federal officer (1) is fulfilling an authorized federal duty, and (2) acts in a manner that is either “necessary and proper” or “reasonable and necessary” (depending on the court) to complete their federal duty.

In the desegregation era, a federal district court found that Supremacy Clause immunity protected a federal marshal who had been directed to ensure the execution and enforcement of a Fifth Circuit decision relating to the admission of a Black student, James Meredith, to the University of Mississippi. Petition of McShane, 235 F. Supp. 262, 264 (N.D. Miss. 1964). In relation to Meredith’s admission to the university, there were riots on campus and at least two people were killed, many were injured, and property was damaged. During these riots, the marshal ordered tear gas to be fired at the crowd; Mississippi prosecutors alleged that the marshal’s use of tear gas is what actually incited the riots and led to the deaths. State prosecutors charged him and he was indicted by a grand jury. Despite the seriousness of the alleged conduct, the federal district court granted the marshal Supremacy Clause immunity.

Generally, courts seem to grant immunity more often than not. But in one case where the court rejected a federal official’s attempt to claim immunity, it noted that a pattern of misfeasance and the lack of urgency under the circumstances both supported denying immunity. See Tennessee v. Dodd, No. 1:08-CR-10100, 2009 WL 32886, at *7 (W.D. Tenn. Jan. 6, 2009) (“The pattern of misfeasance herein indicates a willful disregard of his duties, and these mistakes are further aggravated by the lack of any urgency in the context in which his decisions were made.”).

Unlike during the desegregation era, however, there is more objective evidence that can be used in court. While past prosecutions may have relied heavily on witness accounts, now we have body cams and cell phones often capturing ICE agents’ conduct from many angles, giving courts more evidence to more objectively consider the necessity and propriety (or lack thereof) of the conduct.

Actions to Stop State Agencies from Cooperating with ICE

Some states have also made efforts to prevent state resources from aiding ICE. For example, in New Jersey, Governor Mikie Sherrill issued Executive Order No. 12 in February 2026, barring ICE from making warrantless arrests in non-public areas, preventing ICE from using state property as processing areas for immigration enforcement, and creating a reporting portal for residents to document ICE activity. In response, the Trump administration has filed suit against New Jersey.

During desegregation, many southern states similarly took non-cooperative actions to circumvent desegregation orders. Southern states and local schools resisted court orders to desegregate by simply closing schools rather than integrate them. Virginia, for example, passed an amendment to its constitution to repeal its compulsory school attendance law, allowing the governor to close schools and parents to move their kids to private schools. Prince Edward County, Virginia, closed its entire public school system for five years after receiving an order to integrate. Other southern states facilitated resistance to desegregation. Georgia, for example, passed laws financing the tuition of students who were leaving the public school system to go to private schools and allowing White teachers who left for private schools to continue contributing to and benefiting from the state retirement system.

Looking Ahead

The battle between ICE and state and local governments makes clear that states’ authority under federalism is a double-edged sword—capable of cutting both against and for racial justice. Based on both its statements and its response to state action, the Trump administration will sue when states attempt to resist or limit ICE. Given the near inevitability of executive retaliation, it may seem at first that the most effective state resistance actions will be the ones that have the strongest legal footing to withstand federal challenges. But despite the contrary substantive goals, it is helpful to reflect on the structural federalism goals of segregationist states, given that there is a question as to how much the segregationist states actually “failed” in the long term. Residential segregation continues, and in the past few decades, researchers have found that schools are actually becoming more segregated. Perhaps this means that states and courts should be taking bigger swings and trying new, untested methods.

Many states are taking new steps. Some go further than non-cooperation, attempting to regulate the conduct of ICE agents. California’s No Secret Police Act, for example, banned federal law enforcement, such as ICE agents, from wearing face masks that conceal identity, with some limited exceptions. A judge in the Central District of California granted a preliminary injunction striking down the Act for its violation of the intergovernmental immunity doctrine. Since California’s Act only imposed masking restrictions on federal law enforcement officers and peace officers employed by city, county, or local agencies and not on law enforcement officers employed by California, it impermissibly discriminated against the federal government.

California also passed a companion law, the No Vigilantes Act, requiring federal officers to display visible identification. Pending appeal of that law, the Ninth Circuit granted the federal government a preliminary injunction on the grounds that it directly regulated the federal government and is therefore likely unconstitutional—and would be even if the law had regulated state law enforcement officers too. Another seemingly new tool that states are using is the creation of private rights of action for their residents to sue federal agents for constitutional violations. The success of these private rights of action remains to be seen, though Professor Nora Engstrom and Malka Herman have separately pointed to the Federal Tort Claims Act as another underutilized accountability tool. The development of new techniques is promising.

It is notable that the states’ goals today in hindering ICE are perhaps shorter-term than the segregationist states’ efforts to resist desegregation entirely and permanently. Most lawmakers today seem to support the general existence of immigration agents. Instead, they seem more focused on the particular methods that ICE agents are using, rather than complete abolition. Thus, while the segregationist states’ efforts ultimately failed, their objective was also different from the states’ objective today. Today, perhaps delay and obstruction constitutes success for these lawmakers. The key to successful delay against ICE today seems to be a commitment to continuously implementing new efforts even as the Trump administration challenges them.

“[T]ake lawful advantage of every moment of the law’s delays . . . Litigate? Let us pledge ourselves to litigate this thing for 50 years. If one remedial law is ruled invalid, then let us try another; and if the second is ruled invalid, then let us enact a third.” – James Jackson Kilpatrick, Jr., editor of the Richmond News Leader and prominent school segregation defender.

Lily Hong is a student at Stanford Law School.