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The federal response made no effort to address the concerns of state-court judges that courthouse immigration arrests erode and undermine justice in state and local courts.

Instead, administration officials suggested that the courthouse arrests might in some sense be retaliation for earlier federal defeats in the ongoing federalism battle fueled by the rise of .

Third, the federal courts have a shared interest with state and local courts in enforcing the privilege to advance those policy rationales.

This deeply entrenched common-law privilege demonstrates that local courts have legal authority to regulate courthouse immigration arrests and would be standing on firmly recognized policy grounds if they did so.

State-court judges primarily feared that civil immigration arrests would cause witnesses,55 criminal defendants,56 and civil litigants57 to avoid the courthouse.58 Deterring people from coming to court, they argued, in turn with the state and local courts’ administration of justice,59 deprives them of their ability to adjudicate cases effectively,60 and threatens to cut off access to justice.61 In sum, state-court judges believed their “fundamental mission”62 and “ability to function”63 were undermined by courthouse arrests. 1817) (noting that the privilege enables a litigant “to procure, without difficulty, the attendance of all such persons as are necessary to manifest his rights”); the right to be present at critical stages of the case, see Parker v.

Federal courts have not faced similar problems, as federal immigration officials can count on the cooperation and support of federal criminal justice agencies in lieu of making courthouse arrests. Marco, (“It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination.”); and the right to present claims or defenses.

But a closer look at the complaints of state and local governments—and the response of the federal government—reveals that the controversy over courthouse arrests is merely a continuation of federalism battle. 144, 155 (1992) (describing Tenth Amendment inquiry into “whether [the federal government] invades the province of state sovereignty reserved by the Tenth Amendment.”); U.

Part II contextualizes courthouse arrests as the latest front in the federalism battle fueled by federal efforts to co-opt local criminal justice systems to serve the immigration enforcement mission.

Part III examines a longstanding common-law doctrine establishing a privilege against courthouse arrests, and discerns two strands of this privilege.

In 1996, Congress passed legislation that simply invited local criminal justice agencies to enter into “287(g) agreements” that would allow local officers to enforce immigration law.32 After 9/11, however, the federal government opined that local law enforcement had “inherent authority” to enforce immigration laws33 and encouraged the activation of this dormant authority.34 The ever-increasing identification of noncitizens with criminals observed by and others35 worked to transform immigration into a criminal problem, and therefore a problem appropriately solved by state and local police.36 The “inherent authority” argument, though, was susceptible to challenge based on principles of federalism,37 and was ultimately discredited in the Supreme Court’s 2012 decision striking down portions of Arizona’s Senate Bill 1070.38 Meanwhile, by 2008, as enforcement numbers soared, the federal appetite for crime-based immigration enforcement could no longer await voluntary or even encouraged local participation.

The “Secure Communities” program, initially depicted as a voluntary data-sharing program from which localities could “opt out” if they did not want to be part of the local-federal immigration enforcement team, was finally unmasked in 2011 (three years into the program) as a mandatory regime.39 This brought the federalism battle to the fore, as unwilling participants at both the local and state level turned to the Tenth Amendment to disentangle local law enforcement from federal immigration enforcement.40 After a federal court decision in early 201441 made clear that the federal government could not use immigration “detainers” to command localities to prolong the detention of noncitizens otherwise entitled to release from local custody, a wave of policies limiting detainer compliance engulfed the country.42 Currently, over twenty-five percent of counties decline to hold prisoners based on immigration detainers.43 The Trump Administration, apparently intent on exceeding the record deportation numbers of the Obama Administration,44 has not retreated from the federalism battle.