State Authority to Limit Disruptive Federal Activity 

The U.S. Department of Homeland Security has vastly expanded Immigration and Customs Enforcement’s (ICE) presence across the country, extending its reach to nearly every state and major city. In response, state and local governments are increasingly looking to location-specific protections, and to property law more broadly, to address the effects of this federal presence.

Two recent reports from the State Democracy Research Initiative detail these efforts and the hurdles they may face. One report describes how jurisdictions are using property law to prevent ICE from operating detention facilities in their backyard or to limit federal actions on state and local property. Many are changing their zoning and land use laws to block new detention facilities. Some are bringing nuisance claims and other lawsuits against massive detention centers. And at least two cities — Salt Lake City, Utah, and Social Circle, Georgia — have cut off or capped water service for planned detention facilities. Meanwhile, officials in more than two dozen jurisdictions have passed ordinances or issued executive orders barring federal officers from using state or local property to stage or carry out federal operations.

A second report explores how states have also sought to protect critical infrastructure or locations key to civic, economic, or political life. Following the recission of federal guidelines limiting immigration enforcement at so-called “sensitive locations” like courthouses, schools, and hospitals, state and local governments have sought to fill the gap by enacting policies limiting warrantless civil arrests. Some, like New York City, require a warrant to allow immigration officials into non-public areas of city property; an Oregon statute similarly requires hospitals to designate areas like patient rooms as “not open to the public” for law enforcement purposes. Others seek to prohibit warrantless civil arrests at sensitive locations outright. Connecticut, for example, recently enacted a statute providing that absent a judicial warrant, no “peace officer” — a category that includes federal law enforcement — “shall detain, arrest or otherwise take an individual . . . into custody on the basis of a civil offense” in any state or municipal building, school, hospital, place of worship, playground, recreation center, childcare center, social services establishment (like a shelter, food bank, or treatment facility), emergency response location, or cemetery. Numerous other jurisdictions are considering the same.

All these efforts flow from common fonts of traditional authority. States and localities generally possess broad power over which portions of public property individuals can access — and for what purpose. (Think access to parks or municipal buildings, or rules around who can enter a public school.) States also have broad authority over their own personnel, as well as sovereign interests in their own capacity to govern. Protections over non-public areas may also rely on Fourth Amendment principles, as federal officers typically must obtain either a warrant or consent to enter areas where individuals retain a reasonable expectation of privacy. And, arguably most expansively, states possess historic police power to ensure the health and wellbeing of their residents: Whether safeguarding access to educational facilities, abating public nuisances, or ensuring that contractors conduct safe and sanitary operations, states have primary authority for ensuring, as the Supreme Court has described, the “protection of the lives, limbs, health, comfort, and quiet of all persons.”

State authority is only one half of the puzzle, however. The federal government is challenging several of these state and local limitations across the country, arguing that they unconstitutionally undermine the supremacy of federal law. In lawsuits against Illinois, New Jersey, New Mexico, New York, and elsewhere, the federal government is making sweeping claims of preemption and intergovernmental immunity, arguing that a wide range of state actions that touch on federal activity are invalid. But these arguments would often extend the reach of these doctrines, ignoring longstanding state and local powers.

As the two reports discuss in depth, preemption and intergovernmental immunity do not cut off all avenues for state and local action. Preemption allows federal law to override conflicting state laws. While the analysis differs depending on the state policy in question, states have compelling arguments that federal law does not preempt policies limiting warrantless arrests at particular locations or restricting federal use of state and local property. Similarly, many state and local efforts to regulate privately owned ICE detention facilities are not preempted by federal law.

The U.S. Supreme Court’s intergovernmental immunity doctrine, meanwhile, holds that states and localities cannot “regulate the United States directly” or “discriminate against the Federal Government or those with whom it deals.” While the exact bounds of this doctrine are murky and contested, existing case law establishes that not every state and local action that affects federal activity will constitute an impermissible “direct regulation.” For one, courts have emphasized that states and localities have more leeway to address federal conduct on their own property, given that they are acting as proprietors rather than regulators. This conclusion is reinforced by the anticommandeering doctrine, which forbids nonconsensual conscription of states to carry out federal law. Additionally, when states and localities take action beyond their own properties, courts typically look to the degree of interference with a federal function. Where the state or local regulation merely impacts the manner of carrying out the function rather than amounting to a prohibition, it may survive.

Many of these policies arguably do just that. For example, the U.S. Court of Appeals for the Second Circuit is currently considering the Department of Justice’s intergovernmental immunity challenge to New York’s “Protect Our Courts Act, ” which prohibits civil arrests at courthouses without a warrant. As the State Democracy Research Initiative’s faculty directors Miriam Seifter and Rob Yablon recently argued in an amicus brief alongside other federalism scholars, courts should conclude that state efforts to protect their capacity from federal interference do not run afoul of intergovernmental immunity’s narrow prohibitions.

Across domains, states are facing novel forms of federal overreach — as scholars like Aziz Huq and Zachary Clopton, Jessica Bulman-Pozen and Gillian Metzger, and Bridget Fahey have documented. But as these reports detail, states are increasingly turning to old, well-established tools in response. Understanding these traditional powers of state and local governments can help clarify the stakes of emerging state-federal disputes and preserve the important role for states as a check on federal overreach.

Bryna Godar is a staff attorney and Harrison Stark is senior counsel and director of special projects at the State Democracy Research Initiative at the University of Wisconsin Law School.

Suggesrted Citation: Bryna Godar & Harrison Stark, State Authority to Limit Disruptive Federal Activity, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 20, 2026), https://statecourtreport.org/our-work/analysis-opinion/state-authority-limit-disruptive-federal-activity