Prof. Vladeck-The One First "Long Read": The Limits of Supremacy Clause Immunity

[LetMyPeopleVote]

There is NO absolute immunity.

Today's "One First" explains why Stephen Miller is wrong that ICE officers have "federal immunity" from prosecution for all actions they take in their official duties, and that anyone attempting to prosecute them is committing a felony.

Supremacy Clause immunity is a thing, but it's *not* absolute:

— Steve Vladeck (@stevevladeck.bsky.social) 2025-10-27T11:34:07.822Z

https://www.stevevladeck.com/p/186-when-can-states-prosecute-federal

The doctrine that is today known as “Supremacy Clause immunity” has its origins in an 1890 Supreme Court decision I’ve written about before—In re Neagle, which arose out of the attempted assassination of Justice Stephen Field. In Neagle, the Supreme Court held that California could not prosecute David Neagle (who had been deputized as a federal marshal to protect Field) for shooting and killing Field’s would-be assassin, even though, unbeknownst to Neagle, the victim was unarmed when he was killed. As the Court explained:

If the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as [a federal officer] of the United States, and if in doing that act he did no more that what was necessary and proper for him to do, he cannot be guilty of a crime under the law[s] of the [state]. When these things are shown, it is established that he is innocent of any crime against the laws of the state, or of any other authority whatever. There is no occasion for any further trial in the state court, or in any court.

.......But what is clear is that Miller is wrong. Even at its most robust, Supremacy Clause immunity would not preclude a local or state prosecution of ICE officers for all scope-of-employment conduct. The question would turn, at least under Judge McConnell’s approach, on whether the officer “had an objectively reasonable and well-founded basis to believe that his actions were necessary to fulfill his duties.” That analysis may well come out in the officer’s favor in the mine run of cases. But it wouldn’t (and, historically, hasn’t) in all of them.1

To be sure, I still believe that the specter of criminal prosecutions, even by local or state officials, is a woefully inadequate deterrent for misconduct by federal law enforcement officers. Among lots of other things, there is plenty of law enforcement conduct that would constitute a violation of the Constitution but not of any state criminal statutes. Criminal prosecutions are for a subset of unlawful federal law enforcement activity—albeit the most important subset.

Still, two things can be true at once: There ought to be even more pathways for holding federal officers who violate our rights accountable; and local and state criminal prosecutions, in at least some cases, are not remotely foreclosed—so that state officers who seek to pursue such cases in good faith are not committing any crimes under federal law. There may be political reasons why local or state prosecutors will be wary of bringing such cases. But—and I know this is a shock—the relevant law is far more permissive when it comes to the ability to hold federal officers accountable than Stephen Miller would have you believe.

The ICE agent can and will tried in state court

[FBaggins]

1. Miller overstates the case significantly...

… but it’s unlikely that any state prosecution in this case will stand