The Department of Homeland Security has significantly expanded the national presence of Immigration and Customs Enforcement (ICE), extending its reach to nearly every state and major city. In response, state and local governments are increasingly turning to location-specific protections and broader property laws to address the effects of this federal presence.
Two recent reports by the National Democracy Research Initiative detail these efforts and the hurdles they may face. One report describes how jurisdictions are using property laws to prevent ICE from operating backyard detention facilities and limit federal lawsuits against state and local property. Many localities are changing their zoning and land use laws to discourage new detention facilities. Some have filed nuisance claims and other lawsuits against large-scale detention centers. And at least two cities, Salt Lake City, Utah, and Social Circle, Georgia, have shut down or limited water service to planned detention facilities. Meanwhile, officials in more than 20 jurisdictions have passed ordinances or issued executive orders prohibiting federal employees from using state or local property to conduct or carry out federal business.
The second report examines how states are trying to protect critical infrastructure and sites that are key to civil, economic and political life. With the reversal of federal guidelines restricting immigration enforcement in so-called “sensitive locations” such as courthouses, schools and hospitals, state and local governments are trying to bridge the gap by enacting policies that limit warrantless civilian arrests. In some places, like New York City, immigration officials need a warrant to enter nonpublic areas of city property. Oregon’s law similarly requires hospitals to designate areas such as patient rooms as “private” for law enforcement purposes. Some seek to completely ban warrantless arrests of civilians in sensitive areas. For example, the state of Connecticut recently enacted a statute stating that, absent a judicial warrant, “no individual shall be detained, arrested, or otherwise detained for a civil offense” in any state or local government building, school, hospital, place of worship, playground, recreation center, child care center, social services facility (such as a shelter, food bank, or treatment facility), emergency response location, or other facility. Cemetery. Many other jurisdictions are considering doing the same.
All these efforts come from traditional, authoritative and common fonts. States and local governments generally have broad authority over what parts of public property individuals can access and for what purposes. (Think of rules about access to parks or municipal buildings, or who can enroll in public schools.) States also have broad powers over their own officials, as well as sovereign interests in their own governing capacity. Protection of non-public areas may also rely on Fourth Amendment principles, as federal officers are typically required to obtain a warrant or consent to enter areas where individuals have a reasonable expectation of privacy. And, perhaps most far-reaching, states have historic police powers to ensure the health and well-being of their populations. States have primary powers to ensure, as the Supreme Court has stated, “the protection of life, limb, health, comfort, and tranquility of all persons,” including protecting access to educational facilities, abating public nuisances, and ensuring that contractors perform their work in a safe and sanitary manner.
But state power is only half the puzzle. The federal government is challenging several state and local restrictions across the country as unconstitutionally undermining the primacy of federal law. In lawsuits against states such as Illinois, New Jersey, New Mexico, and New York, the federal government asserts that broad state lawsuits involving federal activities are invalid, and makes sweeping claims to preemption and intergovernmental immunity. But these arguments often extend the reach of these doctrines, ignoring longstanding state and local powers.
As discussed in detail in the two reports, preemption and intergovernmental immunity do not close off all avenues for state and local action. Preemption allows federal law to override conflicting state laws. Although analyzes vary depending on the state policy in question, states have a convincing argument that federal law does not preempt policies that limit warrantless arrests in particular locations or limit federal use of state or local property. Similarly, many state and local efforts to regulate privately owned ICE detention facilities are not preempted by federal law.
Meanwhile, the U.S. Supreme Court’s intergovernmental immunity doctrine states that states and local governments cannot “directly regulate the United States” or “discriminate against the federal government or those with whom it does business.” Although the precise scope of this doctrine is vague and debated, current case law establishes that not all state and local actions that affect federal activity constitute impermissible “direct regulation.” First, the court emphasized that states and localities have more leeway to address federal actions on their own property, given that they act as owners rather than regulators. This conclusion is strengthened by the anti-command principle, which prohibits conscription without a state’s consent to execute federal law. Additionally, when a state or local government takes action beyond its own property, courts typically look at the degree of interference with federal functions. If a state or local regulation does not amount to a prohibition but merely affects how a function is performed, it may persist.
Many of these policies are probably aimed at doing just that. For example, the U.S. Court of Appeals for the Second Circuit is currently considering the Justice Department’s intergovernmental immunity challenge to New York’s Protect the Courts Act, which prohibits civil arrests in court without a warrant. As Miriam Seifter and Rob Yablon, deans of the State Democracy Research Initiative, recently argued in court briefs with other federalist scholars, courts should conclude that states’ efforts to protect their capabilities from federal interference do not violate the narrow prohibition of intergovernmental immunity.
As scholars such as Aziz Haq and Zachary Clopton, Jessica Bulman Posen and Gillian Metzger, and Bridget Fahey have documented, states are facing new forms of federal overreach across their territories. But as these reports detail, states are increasingly relying on long-established tools to respond. Understanding these traditional powers of state and local governments can help clarify the stakes of emerging state-federal conflicts and preserve the states’ important role as a check on federal overreach.
Bryna Goder is a staff attorney and Harrison Stark is a senior advisor and director of special projects for the National Democracy Research Initiative at the University of Wisconsin School of Law.
Recommended Citation: Bryna Godard & Harrison Stark State authorities restricting destructive federal activitiesSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 20, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-authority-limit-disruptive-federal-activity
