When judges defy federal law

NICK EICHER, HOST: Coming up next on The World and Everything in It: judges in handcuffs.

Federal agents recently arrested Wisconsin Judge Hannah Dugan. She faces charges that she helped an illegal immigrant evade arrest… by leading him out of her courtroom through a private door.

The man was in court on domestic abuse charges … although he had been deported during the Obama administration.

MARY REICHARD, HOST: A week earlier, they arrested former New Mexico judge Joel Cano for allegedly harboring an illegal alien and destroying evidence.

These cases are in early stages, but federal policy is clear. Here’s Border Czar Tom Homan at a press briefing that same week:

HOMAN: I’ve said this a thousand times, when you cross that line to impediment, or knowingly harboring, concealing an illegal alien from ICE, you will be prosecuted. Judge or not.

Joining us now is constitutional expert Ilya Shapiro. He is the director of Constitutional Studies at the Manhattan Institute.

REICHARD: Ilya, good morning. My first question is basic: are judges above the law?

SHAPIRO: Well, judges are not above the law. If a judge, federal or state, murders someone, they can be arrested and prosecuted. There's no immunity from committing any other kind of crimes. The more interesting wrinkle is the federalism wrinkle. So here it's federal officials, federal prosecutors, arresting a state judge. There's a doctrine called “anti-commandeering,” which says that the federal government cannot force states or their officials to enforce federal law. But that's not what's going on here. Here, the allegations are that the Wisconsin judge actively prevented the enforcement of federal law. There were ICE agents ready to arrest someone, and she helped him escape. Again, that has yet to be adjudicated, but those are the allegations in the charge sheet. If that is true, that does seem like interference with federal law enforcement and does not implicate this anti-commandeering principle.

REICHARD: To be clear, it is not unusual for federal agents to arrest people in state courthouses, correct?

SHAPIRO: Yeah, they're constantly looking for people who—criminals who violate both federal and state laws. Often, these are worked out ahead of time between local police and federal law enforcement. Sometimes they're not. And especially when a state disagrees with, say, the immigration enforcement priorities of the federal government, there can be non-cooperation. But again, the federal government can't force a state to enforce its laws, immigration, criminal or otherwise, but it can't impede those federal officers.

REICHARD: Ilya, I’m just curious. When you first hear these kinds of stories, what analysis does your mind go through?

SHAPIRO: Well, I want to know what, what she's actually accused of doing. "State judge arrested for defying immigration officials." If you go by just a headline like that, that's a misleading headline, because at that point you think, oh, what state law is in conflict with federal law? Or what? What are the, what does judge order that the feds are you know, is this a federalism issue? What's going on? But then you read and it's, again, it has nothing to do with any ruling that she's made. And I thought, oh, that's what you want to know. What are the facts?

REICHARD: I saw some headlines that said arresting judges undermines access to justice. And yet in the Wisconsin court, there sat alleged victims of domestic abuse who didn’t get their day in court. And then David Brooks over on PBS said that Judge Dugan’s alleged actions “might be something illegal,” but it also struck him as “something heroic.” Any comment?

SHAPIRO: I've also seen comparisons to hiding Anne Frank. One comparison was made on Holocaust Remembrance Day. I mean, look, you can say that we're pursuing the wrong immigration policies, but if someone is in the country illegally, they can be removed. And so it's, it's not like she was doing something to, you know, protect him from the Gestapo, from getting sent to a concentration camp or something. She has a disagreement over the immigration laws, and that's something to take up with her, you know, Congressman, Senator, things like that. I don't see how it's heroic to undermine the rule of law.

REICHARD: There’s a new executive order from President Trump to compile a list of sanctuary cities. A lot of people may wonder why doesn’t the supremacy clause dictate that federal law wins here? I mean, federal law usually takes precedence over state law.

SHAPIRO: This has come up in the marijuana context. And at this point, I think more than half the states have legalized marijuana for recreational purposes. But not so long ago, there are only a handful. And the question was, I think Colorado was one of the first. And the question was, well, what is the Justice Department going to do? And understandably, they prioritized violent gangs and human trafficking and weapons and things like that over just, you know, simple possession of marijuana, even if it was still federally illegal. And the question was, well, what are the Colorado police supposed to be doing? And the answer is, they don't have to help federal officials in prosecuting marijuana violations, but they cannot get in the middle of it. They can't interfere.

REICHARD: Alright, so is it accurate to say the sky isn’t falling, despite some of the headlines?

SHAPIRO: I mean, there's, there's been so much legal action, including in the immigration space. And most of the talk of so called constitutional crisis involves the man who was deported to El Salvador, and there's some question about whether he should have been, whether it was a mistake, can it be brought back? You know, that's not a constitutional crisis. That's kind of high stakes poker. And you know the role of federal judges versus with respect to the Foreign Affairs power of the executive branch? This is even more of a nothing burger. You know, the future court will determine whether, indeed, this person, who happens to be a judge obstructed a federal investigation or pursuit of this person who had an immigration arrest warrant out against him, and that's it.

REICHARD: Ilya Shapiro is a constitutional scholar at the Manhattan Institute. Thanks so much, Ilya.

SHAPIRO: Thanks so much. I also write a substack newsletter called Shapiro’s Gavel.

REICHARD: Very good. Thanks again.

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