That unusual win stems from a link to the Contracts Clause.
Recently the Trump administration suffered two more losses in sanctuary-city litigation, joining a lengthy tally of similar defeats. They did manage, however, to secure a rare victory in this field, achieved through an unusual linkage to the Contracts Clause of the Constitution. The defeats were deserved. The win introduces several intricate questions, though I contend that the administration should ultimately lose here as well, and appellate judges may arrive at that conclusion too.
“Sanctuary” jurisdictions refer to state and local governments that limit how their law-enforcement agencies and other personnel assist federal immigration enforcement and deportation efforts. Trump has faced a long sequence of defeats in his attempts to coerce sanctuary cities and states to abandon their policies.
When the government has tried to compel direct cooperation from states and localities, courts have rightly held that this violates the Supreme Court’s anti-commandeering precedents—a line of rulings driven largely by conservative justices—that hold the federal government cannot force state and local governments to aid in enforcing federal law or to pursue federal purposes. In cases where Trump sought to withhold federal funds from sanctuary jurisdictions, courts have likewise ruled that the executive branch cannot attach grant conditions not authorized by Congress and, in some instances, that the conditions imposed were unconstitutionally coercive. For my analyses of the Trump II decisions on these matters, see here, here, and here.
In my 2019 Texas Law Review article, I surveyed and evaluated litigation stemming from Trump’s first-term attacks on sanctuary jurisdictions. There and in other writings, I argue that immigration sanctuaries (and conservative gun sanctuaries) can have beneficial effects and help safeguard our constitutional framework. See also my February 2026 Dispatch piece, “In Defense of Sanctuary Cities,” which offers an overview of these issues and defends sanctuary jurisdictions from both constitutional and policy perspectives.
Last week’s defeats for Trump largely aligned with these longstanding precedents. In United States v. New Jersey, a federal district court sustained New Jersey Governor Mikie Sherrill’s Executive Order No. 12, which prohibits federal immigration enforcement officers from entering “nonpublic” areas of state government property for purposes of civil immigration enforcement, except in a handful of exceptional circumstances, such as when a federal court order requires entry. The anti-commandeering analysis here is straightforward. New Jersey cannot be compelled to allow federal law enforcement access to its property. As the court explained, “EO12 does not prevent the United States from carrying out federal immigration laws; rather, it declares that New Jersey will not provide its own resources to assist the United States in these efforts. If New Jersey were required to offer its resources, such a requirement would violate the anticommandeering doctrine.”
The court also rejects the claim that EO 12 violates “intergovernmental immunity,” a legal doctrine barring states and localities from discriminating against the federal government and “regulating” it. As Judge Georgette Castner explains in her opinion, a successful discrimination claim requires proof that federal officials were treated differently from a “comparator”—state or local officials or private-sector employees engaged in similar activities. There are no state, local, or private activities equivalent to federal immigration enforcement.
I have made similar points here, referring to an earlier case where this doctrine arose in the sanctuary- jurisdiction context. I would add that the entire concept of intergovernmental immunity strikes me as flawed, judge-made law. There is no constitutional provision mandating it. And the federal government is not some historically oppressed minority protected by the Fourteenth Amendment’s antidiscrimination provisions. Where state and local governments retain the autonomy to refuse cooperation with the feds, that autonomy should not be surrendered merely because they choose to support comparable activities by other governments or by the private sector. Obviously, a district court cannot disregard Supreme Court precedent in this domain. Yet I hope the Supreme Court may one day reexamine that precedent.
In United States v. City of Rochester, a federal district court rejected the Trump Administration’s suit challenging Rochester’s sanctuary-city policy limiting cooperation with federal immigration enforcement, among other issues. Judge Frank Geraci applied the standard anti-commandeering reasoning and likewise rejected an intergovernmental-immunity claim, for substantially the same reasons as in New Jersey.
These two cases also involve various procedural questions, which I will leave to other observers. The Justice Department may well pursue appeals in one or both decisions. Nevertheless, I doubt either ruling will be overturned, as both fit squarely with extensive precedent.
Trump did secure a rare win in a sanctuary case in United States v. Virginia. The dispute challenged Virginia’s new statute prohibiting state and local governments from entering into Section 287(g) partnerships with ICE, through which local enforcement helps ICE conduct immigration enforcement. The new law requires terminating such arrangements unless federal officials satisfy a set of conditions.
The federal court concluded that this statute violates the Contracts Clause of the Constitution, which forbids laws impairing the Obligation of Contracts. There is scant relevant precedent on whether the Contracts Clause extends to arrangements like this. Yet I remain skeptical of the court’s position for two reasons. First, it is unclear whether the Contracts Clause applies to contracts between states and the federal government, as opposed to contracts between two private parties or between states and private entities. The Clause is rooted in early natural-rights reasoning about contractual obligations; states, unlike private actors, do not enjoy natural rights as understood at the Founding. They are political entities formed to safeguard the rights of their people.
Second, given ICE’s numerous and repeated illegal actions—thousands of unlawful detentions (including of U.S. citizens), widespread unconstitutional racial profiling, violence against demonstrators (including the unacceptable killings of several U.S. citizens)—state and local cooperation with ICE functions as a form of enabling widespread illegality unless ICE policies are profoundly reformed. Conventional contract law holds that contracts that facilitate illegitimate purposes are themselves invalid and voidable.
This issue was not directly raised in the Virginia case (though Virginia argued that it seeks to terminate the 287(g) agreements in part because of ICE abuses). I hope it will be addressed in future cases with similar facts.
Since the 1934 Blaisdell decision, the Supreme Court has permitted states to curtail contracts in various ways based on public-policy grounds. I regard Blaisdell and related rulings as largely mistaken. But lower courts are bound by them, and last week’s decision does not sufficiently account for these precedents. Virginia’s public-policy justifications for ending 287(g) arrangements—such as preventing ICE misconduct and preserving state-law-enforcement resources for non-immigration matters—are at least as compelling as those allowed in prior decisions.
The court also held that the Virginia statute violates intergovernmental immunity. I view this conclusion as flawed for many of the same reasons that attenuated the New Jersey and Rochester holdings did. There is no other form of intergovernmental cooperation that closely resembles Section 287(g) agreements, so there is no discrimination. And as Virginia correctly argued, the law does not improperly “regulate” federal officials, since it merely restricts actions within its own state and local agencies. The only obligations potentially placed on the federal government are those it must meet if it wants to forge new 287(g) agreements. But such reciprocal bargaining is an inherent feature of most agreements.
The practical impact of the Virginia ruling is likely to be modest. Judge Stephen Payne’s decision does not bar Virginia from forbidding state and local agencies from initiating new 287(g) agreements. It merely prevents the immediate termination of those already in place, since only the latter would be deemed to impair an existing contractual obligation. And, as Judge Payne notes, local governments can normally end existing agreements by giving 90 days’ notice. Consequently, Virginia can still promptly terminate 287(g) agreements within its borders simply by amending its statute to require notice from participating agencies and by terminating the contracts after the notice period. At minimum, Virginia can still terminate all 287(g) agreements once those currently active expire.
All three of last week’s rulings are likely to be subject to appeals. If so, the appellate courts will determine their fate.
