On Monday, a federal judge handed the Trump administration a significant victory in its challenge to a new Virginia law restricting cooperation between local law enforcement and federal immigration authorities.
Judge Robert Payne granted in part the Department of Justice's (DOJ's) request for a preliminary injunction, preventing Virginia from using the law to interfere with existing 287(g) agreements between Virginia localities and ICE. But it should be noted that Payne didn't completely block the law — Virginia may still prevent localities that haven't previously participated in the 287(g) program from entering new agreements.
Section 287(g) of the Immigration and Nationality Act allows ICE to enter agreements with state/local law-enforcement agencies under which trained local officers may perform specified immigration-enforcement functions under federal supervision. Virginia's new law, Va. Code §15.2-1726.1, however, restricts state/local participation in those arrangements.
The DOJ sued Virginia and sought a preliminary injunction preventing enforcement while its constitutional challenge proceeds. Payne has now concluded the government is likely to succeed on at least two of its claims.
First, Payne finds DOJ likely to prevail on its Contracts Clause claim — the Constitution prohibits states from passing laws that impermissibly impair contractual obligations. Payne concludes that the Virginia law substantially interferes with existing contracts between the federal government and Virginia localities. He also finds the impairment isn't sufficiently “appropriate” and “reasonable” to advance a significant and legitimate public purpose on the part of the Commonwealth. Thus, whatever authority Virginia has over its local governments going forward, Payne says it likely cannot retroactively disrupt agreements that those jurisdictions have already made with the federal government.
Payne also finds the DOJ likely to prevail under the Supremacy Clause/intergovernmental-immunity doctrine. Key to that is his finding that Virginia's statute: “directly regulates the conduct of federal law enforcement in the enforcement of the federal immigration laws." In other words, states have substantial authority over their own governments and officers, but they generally can't dictate how federal officers carry out federal law. Thus, the injunction expressly bars Virginia from enforcing the statute against federal officers, employees, or agencies involved in immigration enforcement.
Now, it's important to note that Payne doesn't freeze the Virginia law altogether. Per his ruling, those jurisdictions already participating in 287(g) may continue doing so without the Commonwealth interfering. But localities that haven't previously entered a 287(g) agreement remain subject to Virginia's prohibition on entering into one. Payne maintains that distinction preserves the “status quo ante” while the remaining claims are litigated.
In a nutshell, the ruling preserves existing ICE-local partnerships, but it does not open the door to additional Virginia localities joining the program.
Again, this is a preliminary injunction, not a final determination that Virginia's law is unconstitutional. The underlying litigation continues, including claims not resolved by this rather brief order. (Payne says a fuller memorandum opinion explaining his reasoning is forthcoming.)
For now, though, Payne has drawn a fairly clear line: Virginia may close the door to new local ICE partnerships, but it can't use its new law to tear up the ones already in place — or tell federal immigration officers how to do their jobs. That's a win for the Trump DOJ.