Attorneys General (AGs) and Governors of states can and have sued the President and his administration over the deployment of federal assets like ICE, Border Patrol, and the National Guard into their states.
These lawsuits generally center on arguments of federal overreach and the violation of state sovereignty under the Constitution.
🏛️ Legal Basis for the Lawsuits
State AGs rely on several key constitutional and statutory arguments when challenging these federal deployments:
Violation of the Posse Comitatus Act (PCA): This is the main argument used against the deployment of the National Guard when federalized (under Title 10 status) or the U.S. Military being used for domestic law enforcement. The lawsuits allege that the deployment violates the PCA by engaging military forces in civilian policing functions without explicit legal authorization.
Infringement on the Tenth Amendment (State Sovereignty): AGs argue that the federal government is unlawfully stripping the state of its constitutional power to maintain public order and manage its own law enforcement (the state's inherent "police powers").
Lack of Legal Basis for Insurrection Act: When the President attempts to federalize a state's National Guard or deploy troops under the Insurrection Act, the state AGs argue that the conditions on the ground—such as protests or minor unrest—do not meet the very high bar of "rebellion," "insurrection," or a breakdown of law that local authorities cannot handle, which is required by the federal statute.
Immigration Enforcement (ICE/CBP): While the federal government has clear authority over immigration, states have sued when the federal enforcement is alleged to be:
Unconstitutional: Violating the Fourth or Fifth Amendment rights of state residents (e.g., unlawful detentions of U.S. citizens).
Coercive: Attempting to force state and local agencies to cooperate with federal immigration enforcement by threatening to withhold unrelated federal funds (like disaster relief or transportation grants).
⚖️ Real-World Litigation Examples
Attorneys General and state officials have successfully used the courts to challenge these deployments:
National Guard Deployments: AGs and city officials in places like Portland, Oregon, and Chicago, Illinois have filed lawsuits to block or challenge the deployment of National Guard troops into their cities. Judges have, at times, ruled in favor of the states, issuing temporary restraining orders and injunctions that blocked or limited the federal deployment, finding that the administration failed to provide a lawful basis.
ICE/DHS Funding Conditions: Coalitions of state AGs have filed numerous lawsuits challenging the administration's attempts to tie federal funding (e.g., for crime victim assistance, FEMA relief) to a state's cooperation with federal immigration enforcement priorities. Courts have often sided with the states, ruling the conditions to be an unlawful overreach of federal authority.
In essence, a lawsuit from a state AG against the federal government is a legal challenge to the separation of powers and the balance of authority between the federal and state governments.