State Laws Can Circumvent Federal Immunity to Hold ICE Agents Accountable for Constitutional Violations
Source: Mark Joseph Stern. "ACLU lawsuit could stop ICE reign of terror in Maine and blue states.." April 15, 2026. slate.com
The Gist
The author argues that a new lawsuit strategy could finally hold ICE agents accountable for violating people's rights. Since federal law makes it nearly impossible to sue federal agents, lawyers are using state laws instead to sue ICE agents who violate the Constitution. If this works in Maine, it could open the door for similar lawsuits across the country.
Conclusion
A new legal strategy using state laws to sue federal ICE agents for constitutional violations could successfully hold them accountable and deter future misconduct, despite federal immunity protections.
Premises
- Federal law provides broad immunity protections for ICE agents, making it nearly impossible to sue them under federal Bivens remedies due to recent Supreme Court restrictions
- Maine has a state law (since 1989) that authorizes damages against federal officials who violate constitutional rights, and several other states have similar laws
- The Westfall Act of 1988 includes an exception allowing suits 'brought for a violation of the Constitution,' which should permit state-law constitutional claims against federal agents
- Legal scholars like Akhil Amar, Carlos Manuel Vázquez, and Steve Vladeck have developed this theory, and conservative Trump-appointee Judge Justin Walker has endorsed it
- The Carvajal-Muñoz case presents ideal circumstances: clear constitutional violations (racial profiling, excessive force), established rights, and favorable jurisdiction in Maine's progressive federal courts
- ICE's current operations involve widespread constitutional violations against people who appear Latino, creating urgent need for accountability mechanisms
Assumptions
- The Supreme Court will interpret the Westfall Act's constitutional exception to preserve state remedies, not just federal Bivens claims
- Federal courts in Maine and the 1st Circuit will be receptive to this novel legal theory
- State laws can constitutionally authorize suits against federal officials without violating federal supremacy principles
- The constitutional violations in ICE operations are clear enough that immunity defenses will fail
- Success in this case will create precedent that enables similar suits nationwide