At What Point Does Inaction Become Complicity.

The wrap-up of our four-part series on the constitutional architecture of state opposition to federal authoritarian capture.

People place white carnation flowers on the fence of the Krome Detention Center during a vigil protesting US Immigration and Customs Enforcement custody and mass deportations in Miami on May 24, 2025. Giorgio Viera/AFP via Getty Images

Note from the author: You can scroll to the very bottom of this article to find an activist action for the day. All citations are hyperlinked in the text they’re citing.

This is the fourth and final piece in The American Reformation, a public series built around the working paper “The Constitutional Architecture of State Opposition”, currently available for public review and forthcoming in peer-reviewed journals. The series maps a tiered framework for state and local opposition to federal authoritarian capture. States have already pieced together the first three tiers across the country. No governor has yet invoked the fourth tier against the conduct this article documents, and the question this article asks is when, under our Constitution, that choice stops being acceptable.

Part 1

Part 2

Part 3

Here is what this article is going to do.

It’s going to ground the premise our title states with the exploration of what is documented and confirmed inside immigration detention facilities right now. And then it is going to place that question inside the historical record, where other people asked the same question before, where the people with power chose not to answer it, and where history recorded that choice with a precision that no subsequent apology has erased.

This piece is about the fourth tier. A note before we go further. The tiers are not a ladder. They are categories of action. A state does not climb up through them in order. Most active states are already doing things that fit inside Tier 1, Tier 2, and Tier 3 at the same time. Tier 4 is another set of actions available to officials who hold the authority to take them. What this piece is about is what Tier 4 asks of those officials, what they are not doing, what they may have to do, and what history will say about them depending on their decisions.

On February 20, 2026, United States Senator Alex Padilla arrived at the Otay Mesa Detention Center in San Diego carrying written clearance from ICE issued days earlier and his congressional identification. Federal law gives members of Congress the right to enter immigration detention facilities unannounced for oversight purposes. The clearance confirmed the right. When Padilla and the two San Diego County supervisors accompanying him arrived, officials with CoreCivic, the private Tennessee-based corporation operating the facility under federal contract, told them national ICE leadership had reversed the clearance. When the supervisors produced their written approval, detention officials threatened to call the San Diego County Sheriff to remove them.

Padilla was not the first. In May 2025, Newark Mayor Ras Baraka went to the Delaney Hall detention facility with three members of Congress who were there to conduct an oversight visit. A guard opened the gate and let Baraka onto the property. He stepped back outside the gate to wait. Federal agents came out, huddled, and arrested him on the public sidewalk. A federal magistrate judge later dismissed the charges and spent several minutes criticizing the government’s conduct, calling the arrest “hasty” and “a worrying misstep.” Baraka had done nothing wrong. The charges were gone before they could be prosecuted but the exercise of power was the point and it was made.

Senator Jon Ossoff of Georgia spent all of 2025 trying to find out what was going on at these facilities. His office documented 1,037 credible reports of human rights abuses in immigration detention between January 20, 2025 and January 12, 2026, including 44 cases of family separation, among them a mother separated from her breastfeeding infant for several months; 206 cases of medical neglect, among them a detainee who drank contaminated water, lost consciousness from an allergic reaction, and waited seven hours for care; 40 cases involving children; and 26 cases involving pregnant women, one of whom described being told to “just drink water” when she repeatedly requested a checkup. ICE confirmed 36 deaths in custody during that period. More people died in ICE detention in 2025 than in the prior four years combined. The facility known as Alligator Alcatraz produced no published inspection reports at all during 2025. ICE’s internal inspection rate dropped 36 percent as the detained population reached a record 73,000 people on a single day in January 2026. Three out of four people held inside that system as of February 2026 had no criminal conviction.

The administration says conditions inside meet legal standards. The administration has obstructed attempts to confirm compliance.

So here is what we are dealing with, stated plainly. If you knew, with certainty, that the federal government was holding people in conditions that constituted horrific crimes, and you had the power to intervene and stop it, and you chose not to act, what do we call that choice? This has a historical record and a documented answer. Humanity has been here before, and we know how history grades the people who waited.

International law has also been here before. The doctrine is called command responsibility, and a narrower version of it called bystander or superior responsibility. The principle is that a person who holds authority inside a territory, who has the legal means to act, who knows what is happening, and who chooses not to use what they hold answers personally for that choice. The Rome Statute of the International Criminal Court codifies it. The ad hoc tribunals for Rwanda and the former Yugoslavia applied it. The Dutch Supreme Court ruled the Netherlands legally liable for the deaths of three Bosniak men whom Dutch peacekeepers handed over to Bosnian Serb forces at Srebrenica, on the reasoning that Dutch authority and Dutch capacity to protect those men created a duty Dutch officials chose not to honor. The Dutch government raised the defense that intervention would have provoked conflict. The court did not accept that excuse.

A governor is not a peacekeeping commander and ICE agents are not Bosnian Serb forces. The doctrine does not transfer over by direct analogy. What does transfer is the principle. Authority inside your own territory, plus knowledge of ongoing harm, plus the legal means to act, plus a choice not to use them, equals responsibility under modern international consensus. American governors hold state criminal jurisdiction over crimes committed on state soil. They hold state law enforcement, the National Guard, the state attorney general, and a documented constitutional duty under the oath of office. The federal flag above a building does not pull that ground out from under them. The choice not to use what they hold, while ICE separates a mother from her breastfeeding infant inside that building and tells a pregnant woman to “just drink water” instead of seeing a doctor, sits inside the same logic the Dutch courts applied to their own government. The accounting may not happen in The Hague. The accounting will happen.

In January 1994, General Roméo Dallaire, commander of the United Nations peacekeeping force in Rwanda, sent a fax to UN headquarters in New York. He had obtained intelligence that Hutu extremists were registering Tutsi civilians, stockpiling weapons, and planning mass extermination. He requested authorization to raid the arms caches. The office heading UN peacekeeping operations told him no. Dallaire stayed. He begged for reinforcements. He estimated 5,000 troops with a proper mandate could have stopped most of the killing. The Security Council voted to reduce his force to 270 soldiers instead. Between April and July 1994, Hutu extremists killed approximately 800,000 Tutsis and moderate Hutus in 100 days.

The Clinton administration knew. Declassified State Department documents show officials understood within days that what was happening met the legal definition of genocide. An internal document recorded that calling it genocide could commit the government to actually doing something. So for weeks, spokespersons received instructions to say “acts of genocide” instead, a distinction engineered specifically to avoid the obligations the word triggered. When a Reuters correspondent asked State Department spokesperson Christine Shelley how many acts of genocide it takes to make genocide, she answered: “That’s just not a question that I’m in a position to answer.” Clinton later called his failure to act in Rwanda the greatest regret of his presidency. Dallaire wrote in his memoir that he left Africa a broken man. The officials used manufactured uncertainty to justify inaction. They had power and found reasons not to use it. History named that choice for what it was. Fourteen months later, Dutch peacekeepers stood inside a UN-designated safe area in Srebrenica and waited six hours for clearance to call in air support. Bosnian Serb forces killed approximately 8,000 Bosniak men and boys while the request moved through channels. The Netherlands issued a state apology decades later. The system around them had built enough uncertainty to make inaction feel like the only legal option.

The people who are not waiting are the ones with the least institutional power.

Since the beginning of 2025, civilians have shown up outside detention facilities with cameras and their own bodies. They have documented what they can see from public property. They have filmed masked agents loading people into vans. Federal officials have arrested some of them. None of them hold the authority to enter the facilities. They are using what they have because they have decided that using what they have is what the moment requires.

Every person above them on the ladder of institutional power answers to that standard.

A mayor controls city property, city contracts, city police, and a public platform that reaches every resident in her city. She can demand access to a federal facility on her soil, send city health inspectors under state public health law, direct city police not to assist federal operations, and park herself at the gate on camera until someone explains on the record why federal officials are blocking elected oversight in her city. A sheriff in many states is the highest law enforcement authority in their county, elected independently, answerable to no governor. A sheriff who receives credible reports of criminal abuse inside a facility in their jurisdiction holds the authority to investigate. A police chief who receives evidence that the federal government is doing things inside that building that would land a private citizen in handcuffs holds the same obligation any officer holds when presented with evidence of a crime: investigate. The federal flag above the entrance does not change what the conduct is. It changes how hard the investigation will be. Hard does not mean optional, and history has never accepted it as a synonym.

A governor commands a National Guard, a state attorney general, and the full apparatus of state law enforcement and state criminal jurisdiction. A governor with reasonable grounds to believe that federal conduct within their state may have crossed a constitutional threshold holds an affirmative obligation to find out. Authoritarian governments work by hiding what they are doing from the people who could stop them. They restrict access. They classify documents. They make sure officials who have the authority to act do not know what is happening until it is too late to act. A governor who does not know what is happening inside a federal detention facility on state soil cannot invoke this tier in response to what they do not know exists. So the duty to know precedes the duty to act. A governor with reasonable grounds for concern holds an obligation to investigate, demand access, deploy state law enforcement to inspect facilities operating on state soil, and treat obstruction of that investigation as itself a constitutional signal that the federal government has crossed the threshold. Civil suits alone are insufficient.

The framework that lets a governor do any of this is a map of what the Constitution makes available. Public sentiment is the fuel that decides whether any of it gets used. Governors do not lead. They follow. And there is little chance they will put their own safety at risk without vocal and specific demands from a large portion of their constituents. They will not move ahead of the public, no matter how right the move is, because the political cost of acting still feels higher than the political cost of waiting.

Public sentiment and action is what decides their action. You convince a politician to do something when you convince their constituents to make their action or inaction a precondition for support

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