Someone is telling the candidates: Democrats can’t jail ICE

There is a certain type of politician who has learned that saying something loudly and confidently is enough to say something true. California’s gubernatorial race has produced a bumper crop of them.

Tom Steyer, turned billionaire financier, has called for ICE to be abolished and its agents to be shut down, describing the law enforcement agency as a “violent group.”

Former LA mayor Antonio Villaraigosa compared ICE officials to the Ku Klux Klan, and state Superintendent of Schools Tony Thurmond promised that those working for ICE would be arrested. Former US Health and Human Services Secretary Xavier Becerra vowed to “police the immigration police.”

These are the first candidates to be elected as the governor of the country with the most people in this union.

One might ask: Can they really do any of this? The answer, based not on ideology but on two centuries of constitutional law, is no.

And yet the question is almost never asked, because performance is the point.

Under the Supremacy Clause of Article VI of the US Constitution, and under long-standing Supreme Court precedent, states may not criminally prosecute government officials for actions taken in the official course of their federal duties, as long as the official reasonably believes those actions are necessary to carry out that duty.

This is not an abstract technology. It is a fundamental construct of American federalism, and it has been settled in law longer than most of these readers have been alive.

A legal audit is not complicated. Was the officer authorized by federal law to be there and do something? Did the officer reasonably believe that the action was necessary to perform that duty? If the answer to both is yes, the federal prosecution will not proceed. Full stop.

And if a federal district attorney was careless enough to try anyway, the Justice Department could appeal the case to federal court, where federal immunity applies — and federal prosecutions are completely barred.

Steyer wants to give the attorney general the authority to hold ICE leadership accountable for violence, and to pursue a “supervisory responsibility” to criminally prosecute not only agents but also their superiors — without explaining how any state law can override federal authority.

It won’t. Candidates know this, or should. Their lawyers really do.

What we are seeing is not a legal strategy. Politics.

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The motivational structure of the California base, at least among Democrats, is moving in one direction: toward more enforcement of federal laws, more public spending on legal protection for illegal immigrants, and more inflammatory language about ICE.

This has predictable consequences beyond the campaign trail. When a gubernatorial nominee calls ICE a “criminal organization” involved in “terrorism,” it’s not just the basics. It shapes the way civil servants, local police, and community organizations interact with law enforcement.

It shows that the ban is not just tolerated – rather, it is the official position of the aspirants of the state leadership.

Renowned economist and cultural commentator Thomas Sowell observed that “it is difficult to imagine a more stupid or dangerous way of making decisions than to put those decisions in the hands of people who have nothing to pay for making mistakes.” California’s candidates have devised a striking variation on this theme: They’ve found a way to make promises they know they can’t keep, at a cost they won’t personally bear, to an audience that may never learn the difference.

The Supremacy Clause is not concerned with media releases. Federal supremacy immunity does not bend to the applause line of the debate stage. And the US Constitution was not amended during California’s primary season.

The irony is particularly rich in the case of Xavier Becerra, who once served as California’s attorney general (the state’s top law enforcement officer) before vowing to “police the immigration police.” One might expect a man who once took an oath to uphold the law to have at least some familiarity with the Supremacy Clause. Apparently, the reading didn’t take.

ICE responded simply: “ICE is not a political football.” It’s a statement that needed no legal scholarship, no constitutional footnotes, and no respectability – which may be why it went unreported.

California voters are being asked to choose between candidates competing to make bold promises about power they don’t have, against a federal government whose legal authority they can’t override.

What can be asked – but should be – is a simple question: If your signature proposal can’t survive its first day in court, what exactly are you offering?

The answer, in most cases, is a feeling. And emotions, unfortunately, are not subject to the Supreme Court Clause.

Craig J. DeLuz, who has nearly 30 years of public policy and advocacy experience, hosts a daily news and commentary program called “The RUNDOWN”; and can be traced to X in @CraigDeLuz.