Thread by @JoshMBlackman

1/ Recently, the United States indicted a Massachusetts state court judge for obstruction of justice--specifically, she helped a defendant in her court avoid an ICE arrest. Here is the indictment: reason.com/wp-content/upl…

2/ New York v. U.S. held that Congress cannot "commandeer," or instruct state legislatures to take certain actions. Printz v. U.S. held that Congress cannot "commandeer" state executive branch officials. But what about state judges?

3/ Printz recognized that state judges are different. This argument relies on the text of the supremacy clause, which imposes different standards on state judges and state legislative- and executive-branch officials.

4/ Justice Story reached a similar conclusion in Prigg: state judges were bound to enforce the provisions of the Fugitive Slave Act, but state executive-branch officials could not be compelled to enforce the law. (J. Scalia, for obvious reasons, did not cite Prigg as authority)

5/ I write about this distinction in my new article, Improper Commandeering, forthcoming in @UPaJConstL papers.ssrn.com/sol3/papers.cf…

6/ The Massachusetts judge will not be able to rely on the commandeering doctrine line of cases.

7/ The Massachusetts Supreme Judicial Court held that state officials cannot be forced to honor ICE detainees. The Court cited Printz, but did not note its limited holding to executive-branch officials scholar.google.com/scholar_case?c…

8/ @nikobowie reminds me of FN 2 in J. Scalia's Printz dissent. He draws a distinction between "the performance of functions more appropriately characterized as executive [rather] than judicial."
scholar.google.com/scholar_case?c…]

9/ According to the indictment, the judge and court officer maintained to maintain custody over the D pursuant to their role within the judicial system. And she committed the obstructive act from the bench. Yet, the guidance was issued by the Executive Office of the court.

10/ This case does not involve the traditional exercise of jurisdiction, like deciding a case. The decision to help the D avoid arrest straddles the line between the judicial role, and what may be called a court's administrative (executive) role.

10/ Printz gives very little guidance of how or where to draw this line. Indeed, Scalia said Sweezy v. NH does not apply. (This case involved whether the legislature could exercise the contempt power) scholar.google.com/scholar_case?c…

11/ I need to give this question more thought to this separation of powers question.

12/ Massachusetts District Attorneys, Public Defenders, and civil litigants sue ICE to enjoin arrests in state courthouses. Complaint cites "a privilege against civil arrests for those attending court on official business" assets.documentcloud.org/documents/5980…

13/ The complaint cites Printz, but does not draw distinction between commandeering of state courts, and state executive- and legislative-branch officers.