There Are Now 22,000 ICE Agents. The Supremacy Clause Says States Can Prosecute Every One Who Breaks the Law.

A condition sitting in the first sentence of the Supremacy Clause decides whether states can prosecute federal agents. Courts have spent decades reading past it.

Aug 02, 2026

A person is detained by federal agents near the scene where Renee Good was fatally shot by an ICE officer last week, Tuesday, Jan. 13, 2026, in Minneapolis. (AP Photo/Adam Gray)

A note before you read: I had the opportunity to speak with Laura Flanders on The Nation, alongside Sumathy Kumar, in a televised conversation about soft secession and states standing up to federal overreach. The Nation ran both the video and a written transcript, linked here: https://www.thenation.com/article/politics/christopher-armitage-sumathy-kumar-interview/

Federal agents and the Supremacy Clause come up constantly right now, almost always from people claiming the clause puts agents beyond the reach of state law. Supremacy Clause immunity is one of the most misunderstood ideas in American law, and that misunderstanding lets agents claim a protection they don’t have and discourages prosecutors from charging when they break state law.

I’ve released a new working paper on this subject that you can find on SSRN, with a companion commentary submitted to a professional legal publication and soon to be published. The paper proposes a legal standard I call the pursuance test: working for the federal government protects an agent only when the conduct is backed by the Constitution, and everything else can be prosecuted under state law.

An ICE agent pointed his gun at two motorists on a Minnesota highway, Hennepin County charged him with assault, and when his lawyers moved to get the case thrown out, the Department of Justice entered the case on his side. Stephen Miller had already told ICE agents on television that they have federal immunity in the conduct of their duties, and the vice president called that protection absolute. Nothing in the US Constitution, in any federal statute, or in the case law says that. Nowhere in US jurisprudence, Supreme Court rulings, the Constitution, or federal statute will you find a claim of blanket criminal immunity for federal agents resulting from their conduct occurring on duty.

The Supremacy Clause is Article VI, Clause 2 of the US Constitution, and it makes the Constitution and federal laws “made in Pursuance thereof” the supreme law of the land. That phrase, made in pursuance thereof, is the whole limit, and courts have spent decades reading past it. The clause does not make all federal law supreme. It makes federal law supreme only when the law falls within the enumerated powers the Constitution grants, and the same limit reaches the conduct, not just the statute: an agent acting outside the Constitution, or exceeding what a valid law authorizes, is not carrying out supreme federal law either. Alexander Hamilton spelled out what happens to everything outside those bounds in Federalist 33: federal acts outside the constitutional powers are not supreme law, they are usurpation, and a federal action counter to the Constitution is void. The Tenth Amendment exists because of that same limit, reserving to the states every power the Constitution does not grant, including the power to define and punish crimes.

This is a tectonic shift in legal understanding even among AGs and judges, but it isn’t false. The condition is in the first sentence of the clause. Hamilton explained what it means in 1788, and a law professor at George Washington University argued it at length in a peer-reviewed law journal. What courts have done is proceed as if the condition weren’t there, and the administration is now using that habit to claim something the clause never granted. If the Federalist Society can spend forty years arguing for readings most lawyers first rejected, place judges across the federal bench, and move the whole body of doctrine, then this reading can be pushed too, and this one has more support in the actual words of the clause. It requires reading to the end of the sentence.

In 1890, the Supreme Court set a two-part test in In re Neagle for measuring whether an agent’s conduct is covered by what courts call Supremacy Clause immunity, the defense raised to get a state prosecution thrown out: the act must be one the Constitution authorized the agent to perform, and the agent must have done no more than was necessary and proper. The existence of that test alone is implicit evidence that there is no blanket immunity, otherwise a test would not be necessary to determine if conduct was covered or not. That ruling was overly generous and has been pushed further and further to the point of functioning as the blanket immunity the case never created, because federal judges later borrowed a standard from civil lawsuits about money damages to measure whether an agent’s force was reasonable, and under that standard the agent’s own account of the moment usually ends the prosecution before a jury ever hears the case. That is what happened in Michigan after Samuel Sterling died, when a task force officer’s prosecution was thrown out because the state could not disprove the officer’s account.

So the court should ask two questions. Was the conduct in pursuance of the Constitution? Did the conduct violate state law? A criminal act is a criminal act, and an agent whose conduct was unconstitutional and broke state law stands trial the way anyone else would, while an agent whose conduct was constitutional keeps every protection the Constitution provides.

In January I went to Minneapolis to cover the response after ICE killed Renée Good, and again after they killed Alex Pretti. Cars sat abandoned on the highway with their windows shattered. A schoolteacher, a legal citizen, showed a face bruised and beaten by agents. People who mocked ICE from the sidewalk were beaten, abducted, and held for days without a lawyer. On one of my last days there, two agents charged at me, one hand on a pistol and the other on a baton, shouting “MAGA bitch” and “is that a threat, bitch,” while I said I was only trying not to get shot. The Supremacy Clause does not protect people violating our constitutional rights. That is not only not in pursuance of the Constitution, it is antithetical to it.

This is the administration’s official position now, stated by named officials and argued in court filings, and repeated often enough in public that it starts to sound established. The Justice Department has entered a state criminal case to defend a charged agent, which uses federal legal staff and federal authority to defeat a state prosecution. State criminal jurisdiction exists to prevent exactly this, the pardon power reaches only federal offenses, and a state conviction stands regardless of federal objection. Courts change the law when litigants give them reasons to, and right now the administration is the only party making the argument. Minnesota has charged two ICE agents with state crimes this year, Morgan in April and Castro in May, and Maine’s attorney general has opened an investigation into a fatal ICE shooting in Biddeford.

Restoring law and order is simple, but not easy. Our success becomes inevitable with sufficiently persistent and continually escalating opposition from the two thirds of Americans who are absolutely done with tyranny and ready to do something about it.

Want to become a more sophisticated operative against autocracy? Check out the free ER Library at the bottom of this page.

If you can become a subscriber then you aren’t just funding a newsletter, you’re funding EVERYTHING you see us working on. All of it. The model legislation, the prosecution memos, the fifty-state campaigns getting citizens to file complaints and police reports against DOGE, the DOGE citizen grand juries, our escalation of the John Robert’s Misconduct Complaint as we work to bring the issue to the courts, the pressure on prosecutors to charge agents who broke the law, the thousands of contacts to attorneys general and district attorneys, the thousands of posters distributed in the streets of Minneapolis, the memo delivered to Moriarty’s office hundreds of times. That happens thanks to subscribers keeping the lights on for us. Don’t let this activist community be the reason you skip a meal or miss rent, but if you can be one of the 10 subscribers we need per article, then you’re fueling this entire operation for everyone. Thanks for being here. - Chris

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CALL TO ACTION

Category: state prosecution of a federal agent. Difficulty: 1/10. Five minutes, one email.

IF YOU LIVE IN MINNESOTA

The clearest test in the country is happening in Hennepin County, and the prosecutor is moving. Mary Moriarty fought for months to get the evidence the federal government withheld in the killing of Renée Good by ICE agent Jonathan Ross, and on July 13 she got it. She has already charged another ICE agent, Gregory Morgan. She is doing the work, and she should hear that the public is behind her.

The Existentialist Republic built a complete prosecution memorandum for the Ross case, charging him under existing Minnesota law on public evidence alone, with the charges, the predicate felonies, and the immunity analysis laid out in detail. Hundreds of readers have already sent it to Moriarty’s office. Read it here: https://buymeacoffee.com/theer/e/510468

Contact Hennepin County Attorney Mary Moriarty: Email: citizeninfo@hennepin.us Phone: 612-348-5550 X: @MaryMoriarty

Tell her, in your own words: you support her pursuit of accountability, you know she now has the evidence in the Renée Good case, and the country is behind her as she moves toward charging Jonathan Ross. Encouragement from constituents gives a prosecutor doing hard work the backing to keep going. Plain and short is fine. If her office replies with a form letter or dodges the question, write back and tell them a form response is not an answer and that you have noted their non-answer.

IF YOU LIVE ANYWHERE ELSE

The pattern is national and so is the answer. Find your officials and contact both: Your attorney general: naag.org/find-my-ag Your district attorney: Wikipedia list of county district attorneys

Tell them, in your own words: federal agents are not above state law, your state keeps the power to prosecute them when they break it, and you expect them to use it. If they reply with a form letter or dodge the question, write back and tell them a form response is not an answer and that you have noted their non-answer.

The agents operating in your state are watching whether anyone with charging power intends to act.