What the New Border Czar Says Isn’t Necessarily What Goes | Opinion

President-elect Donald Trump‘s campaign promise of mass deportation has met its man in “border czar” Tom Homan. Having promised to “run the biggest deportation force this country has ever seen,” Homan proclaimed that worksite enforcement would be a central component. He warned that local government officials “need to get the hell out of the way because we’re coming.”

But mass deportation plans rely on others’ cooperation. And the Constitution provides guidance and protections to meet this moment.

As a law professor studying immigration raids and a lawyer who has represented immigrants and local governments in constitutional litigation, we know the script. Consider a long-litigated 2018 raid in Bean Station, Tennessee, where federal agents stormed a meatpacking plant with help from local and state police. They separated workers by race, lining up the Latino workers—even if they offered proof of lawful status—while the white employees were allowed to go home.

This segregation, alongside the racial epithets and physical confrontations showered upon those with brown skin, led the workers to sue. Ultimately, they won the first-ever class-action settlement for a workplace immigration raid, securing more than a million dollars for about 100 workers as well as ICE‘s assistance in securing lawful immigration status.

As the Trump administration moves to follow through on its threats, raids will challenge, and be challenged, in our courts. Immigration officials across administrations have too often flouted Fourth Amendment protections against unreasonable searches and seizures. That’s because these violations are treated differently in immigration court than in criminal court: Criminal courts exclude evidence that was unconstitutionally obtained, limiting the proverbial fruit from a poisonous tree. But in a 1984 case, INS v. Lopez-Mendoza, the Supreme Court decided that immigration proceedings would be different. Because the decision to expel someone from the United States is formally civil, not criminal, the Supreme Court did not apply the exclusionary rule. In other words, an immigrant may be deported based on statements that resulted from an unconstitutional arrest.

However, many forget that the Lopez-Mendoza decision included an important caveat: the court suggested that the exclusionary rule may be appropriate “if there developed good reason to believe that Fourth Amendment violations by [immigration] officers were widespread.” While this caveat has yet to be invoked, if the Trump administration carries out widespread, aggressive raids, courts will have to decide whether to finally redeem the check written in Lopez-Mendoza.

A wave of unconstitutional raids could offer an opportunity to reverse declining public confidence in the judiciary—and the belief that Trump-appointed judges merely kowtow to his whims. Courts across the country should recognize Homan and Trump’s scorn for the law—and protect unconstitutionally arrested workers.

State and local governments will also face a choice. Large raids often rely on help from outside of federal immigration agencies, whether highway patrol or city police. Beyond arresting people, local authorities may be asked to block off roads or provide space to hold people who are arrested.

While some local governments will dive in, others may decline to participate—choices permitted under the Constitution’s anticommandeering doctrine, which limits the federal government’s ability to tell states and cities what to do. Even Homan has acknowledged that state and local governments “don’t have to help us.” California has budgeted millions, to fight against federal overreach. And cities from Los Angeles to Boston to Chicago have pledged not to assist.

Others will be more willing to go along. Even before Trump, Texas passed a law that stretched its police officers’ authority to capture unauthorized immigrants themselves. (That law is currently blocked by a federal court.) And New York City Mayor Eric Adams met with Homan this week “to see what the plan is” for deportations.

But states and localities could pay a high price for abetting unconstitutional raids. Even as the Supreme Court has narrowed the pathways for victims of federal agents’ constitutional violations to obtain relief, victims may demand compensation from state and local police who directly violate civil rights or conspire to do so. In other words, if state and local police help ICE agents and other federal officials to conduct violent and lawless raids, those police—and by extension, local taxpayers— may be on the hook for damages to victims.

Instead, states and cities can—and should—adopt policies to limit using their resources in ICE raids and to avoid unnecessary collection of citizenship information. In particular, while many cities have adopted “sanctuary” policies, they should ensure clear directives to their employees and to the public about traffic control and other collateral assistance to raids. Innocent until proven guilty does not mean innocent until deemed deportable.

Americans may have voted for immigration enforcement, but the government cannot use that to justify unconstitutional methods. While mass immigration and worksite raids make for high drama, they are extremely inefficient at realizing the purported goal of removing millions of people from the country.

Courts, states, and cities shouldn’t let themselves be cast as bit players in the Trump administration’s theater. Instead, the Constitution—including through the Fourth Amendment and the anti-commandeering clause—gives them each their own important role to play.

Shayak Sarkar is a law professor and economist at the University of California-Davis, a Paul & Daisy Soros Fellow, and a Public Voices Fellow of The OpEd Project.

Josh Rosenthal is a civil and worker’s rights lawyer who has represented local governments, immigrants, and unions.

The views expressed in this article are the writers’ own.