While some people believe the best response to current federal immigration policies lies in a strategy based on lawsuits and winning in the next two election cycles, a potentially more effective one is already happening right now.

Writing in support of the proposed Constitution, James Madison offered some strategic advice in a paper known as Federalist #46. Here, the “Father of the Constitution” countered claims that federal power couldn’t be stopped if it acted against the interests or liberty of the people.

Madison made the case that if individuals and states took four steps in large enough numbers, they could create an environment where federal enforcement would be political or practically impossible.

Today, we’re seeing all four steps put into practice before our very eyes in response to federal immigration enforcement measures.

“Disquietude of the people”  

Madison expected the people to throw a fit when the federal government usurped power, violated rights, and even when it just took actions that were extremely unpopular.

The outrage against a “zero-tolerance policy” that resulted in more than 2,300 children seperated from parents being detained for violations of federal immigration law has reached a fevered pitch. Some of the president’s staunchest defenders question or oppose the policy.

But the “disquietude” hasn’t been limited to public statements or angry posts on social networks. Activists showed up to protest Immigration and Customs Enforcement (ICE) facilities in Boston, Battle Creek Michigan, Tucson, San Diego, San Francisco, southwest Texas, and elsewhere. A large rally is also planned for Washington D.C. and cities around the country on June 30.

“The frowns of the executive magistracy of the State”

Madison envisioned governors formally protesting federal actions. This not only raises public awareness; executive leadership also leads to the next steps.

In Colorado, Gov. John Hickenlooper signed an executive order on June 18 banning the use of state resources to help the federal government separate immigrant families. Although Hickenlooper told the Denver Post that his office found no record of the state using resources for this purpose, he felt the order still makes an important statement..

“I think it’s fair to say it’s a rebuke,” he told the Post.

As of this writing, Govs. Charlie Baker (R-Mass.), Andrew Cuomo (D-N.Y.)  Gina Raimondo (D-R.I.), Larry Hogan (R-Md.), Chris Sununu (R-N.H.), John Carney (D-Del.), Ralph Northam (D-Va.), Roy Cooper (D-N.C.), Phil Scott (R-Vt.) and Dannel Malloy (D-Conn.) had joined the growing protest with public statements, with most taking additional steps as well.

Each has pledged to deny any requests to send national guard troops to assist at the border, with at least three cancelling previous commitments to do so. Some states, including Maryland, Virginia, and North Carolina recalled a small handful of troops already deployed.

Such actions fulfill Madison’s recommendation that there should be “frowns” from the governor and move into his next steps as well.

“Refusal to cooperate with the officers of the Union” and Legislative devices, which would often be added on such occasions”

Madison anticipated present day reality. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, it becomes increasingly difficult, if not impossible, for the Federal government to engage in full enforcement.

Not only have some governors already refused to provide or have withdrawn some personnel and resources, ta “refusal to cooperate” and “legislative devices” have started to grow elsewhere too.

In Portland, Oregon for example, multiple-day protests at the ICE office on Macadam Avenue were significant enough to force a temporary closure of the facility.

Last year, the  California became the first state to ban local governments from signing contracts with ICE for new detention facilities “for purposes of civil immigration custody” or for expanding existing contracts. The new law went into effect on Jan 1, 2018.

Add to this the dozens and up to hundreds of local jurisdictions considered immigration “sanctuary cities,” for refusing to participate in some federal immigration enforcement efforts.

First passed in 1989 and last amended in 2016, the San Francisco Sanctuary City Ordinance might be the strongest in the country. It reads, in part:

No department, agency, commission, officer, or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such personal information as defined in Chapter 12I in the City and County of San Francisco unless such assistance is required by Federal or State statute, regulation, or court decision.

This prohibition is in effect right now in San Francisco, and includes, “but is not limited to”

Assisting or cooperating, in one’s official capacity, with any investigation, detention, or arrest procedures, public or clandestine, conducted by the Federal agency charged with enforcement of the Federal immigration law and relating to alleged violations of the civil provisions of the Federal immigration law, except as permitted under Administrative Code Section 12I.3


James Madison wrote that following these steps in wide numbers “would present obstructions which the federal government would hardly be willing to encounter.”

Continuing these efforts and expanding them to include more people and more states would  likely put the federal government in a corner where it’s unable to continue current policies, either due to lack of resources or political will.

As Walt Whitman urged in response to legalized slavery in the 19th century, “To The States, or any one of them, or any city of The States, Resist much, obey little.”

Michael Boldin