[INSPRATIONAL MUSIC STING] - We're now joined by Ronald Chen, distinguished professor of law and university professor at Rutgers Law School.

Good to see you, Ron.

- Good to see you, Steve.

- Can you help clarify something for us?

Who the heck- - Absolutely.

- Who the, well, no, let me ask the question first.

See if you can clarify it.

Is ICE, are the feds in charge and in control as it comes to deportation in Jersey City or Newark or anywhere else in the state of New Jersey?

Are the feds in charge?

And if they are, then what the heck is the role of local police?

- I think the general answer to your question is yes, ICE is in control.

In a federal operation, the federal officers have control, and the state law enforcement doesn't have the ability to supervise them.

However, there are some... There are some exceptions if the federal officer is working way outside the contours of their office and acting really unreasonably.

Some courts have said that in that case state law and state officials can step in.

But it's a very extreme circumstance.

- So, Ron, let's move from hypotheticals to real life.

So in Minnesota, right, there are two people who were killed by ICE officers.

Let the process play out.

I don't even know where these investigations stand at this point, particularly if federal officials say we already know, everything's fine.

I don't know what that means.

There has to be an investigation.

That being said, from your understanding of the law and your understanding, Ron Chen, of when an action is by an ICE officer, a representative of the federal government, going outside of their purview, their lanes, should the police officers in those communities have stepped in to stop ICE because they were, quote, "outside of their jurisdiction"?

- That would be a lot to place on the state police officers on site to have them intervene.

That obviously could lead to a confrontation that you don't know where it's gonna go.

So I understand why they would not have done so on site.

- Hold on, then when would they intervene?

- Well, the other question is if it is determined that the federal officers acted actually outside their proper authority, can state officials intervene later?

There was a case involving the Ruby Ridge incident in which an FBI sharpshooter killed a woman and a child, an unarmed woman and child.

And the state prosecutor wanted to prosecute him under state law.

And the federal court eventually said it's possible if the federal officer, if the FBI agent was acting so unreasonably.

So there is that possibility.

But to ask the state police officer to make that determination on the site while it's going on, that's asking a lot.

- aHere's the thing that I keep asking about.

If you're saying, and many other legal scholars have said, well, it's a lot to expect of local law enforcement or state police to step in.

Got it.

Well, when do the feds get a right to say or have a right to say, you have to help us- - Yeah.

- Apprehend and get these people who are here illegally and take them into custody.

Like, so do the feds get to say, "You have to help us"?

- Yeah, that presents a different constitutional issue.

And the answer is that the Supreme Court has said no.

The state may not be able to interfere with the feds enforcing federal immigration law, but the federal government cannot, the word is commandeer.

They can't essentially appropriate the apparatus of state government and make the state help them enforce federal enforcement law, federal immigration law.

And that's been held through a long line of US Supreme Court cases.

- But if those Supreme Court cases give a local or state or county law enforcement organization/official cover to not be compelled to cooperate with the feds and ICE, well, what stops the Trump administration or any federal administration moving forward from saying, "Okay, well, that's what the courts say, "but you're gonna pay a price now "because we now are gonna withhold federal funding "for this, that, or the other thing."

So from a practical point of view, do they not have, if not the legal right, constitutional right to compel cooperation, don't they have the practical political, often financial one, Ron Chen?

- The Supreme Court has also said that the federal government can't use federal funding essentially to coerce the state.

The best example of that was in the Affordable Care Act, where the federal government tried to withhold or said, "If you don't engage in the Medicaid expansion, "we're gonna withhold all Medicaid payments to your state."

Which for some states, be like a third of their budget.

- Lot of money.

- Yeah, and the court said, "Can't do that.

"You cannot withhold federal funding to coerce."

You can withhold funding from the program that this activity was intended to promote, a limited program.

But you can't do it in such a widespread manner as to coerce the state.

- Clarify this for us.

If someone is here undocumented, are they a criminal?

Are they breaking a law that is a criminal law?

The president says people at Homeland Security, they're criminals, they need to be deported because they're breaking the law, criminal law.

Or is it a civil violation to be undocumented?

Which one is it?

'Cause it can't be both.

- Yeah.

Traditionally being out of status has always been treated as a civil violation, not a- - Well, what is out of, hold on, out of status, what's that mean?

- Well, yeah, you're not here pursuant to a lawful immigration status.

- You're not here legally.

- Yeah.

- Ron, you're not here legally.

- You're not here legally.

Now, there are some forms of that that could be criminal.

Entering the United States illegally, crossing a border without presenting yourself to a border patrol officer, that could be a crime.

Although even that was handled as a fairly low level crime.

But most unauthorized immigrants, especially here in New Jersey, they entered legally, they simply overstayed.

And that's traditionally been viewed as a civil violation.

- So when the president refers to these people as criminals who are illegal immigrants, he's incorrect based on the law?

- I think that, myself, I think that's a dramatic overstatement.

If all they've done is overstay their lawful status, to describe them as criminals and put them in the same batch with those who commit violent crimes is greatly oversimplifying and actually in some ways over complicating the issue.

- Ron Chen is a distinguished professor of law and university professor at Rutgers Law School.

Ron, thank you.

We appreciate it.

We'll have you back soon.

- My pleasure, Steve.

- I'm Steve Adubato.

This has been "State of Affairs."

We thank you so much for watching.

We'll see you next time.

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