In an opinion yesterday, Judge Rakoff refused to dismiss a case brought by New York State and the Kings County District Attorney challenging a policy by the Immigration and Customs Enforcement Agency, or ICE, of arresting suspected unauthorized immigrants when they show up for court proceedings. The opinion introduces the case as follows:

Courts cannot be expected to function properly if third parties (not least the executive branch of the government) feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse, on court property, or while the witnesses or parties are in transit to or from their court proceedings. Accordingly, more than 500 years ago, the English courts developed a common law privilege against civil arrests on courthouse premises and against arrests of parties and other persons necessarily traveling to or from court.

This ancient privilege, incorporated into American law in the early years of our republic by virtually all state and federal courts, has remained largely intact over the centuries. But now, according to the State of New York, [ICE], in implementation of an Executive Order issued by the Trump Administration in January 2017 and a Directive to ICE agents promulgated in January 2018, has increased its civil arrests in or around New York state courthouses by a remarkable 1700 percent and more. By this lawsuit, plaintiff The State of New York, joined by co-plaintiff Eric Gonzalez (the District Attorney of Kings County), demand that these intrusions be halted.

Judge Rakoff rejected the government’s argument (among others) that the immigration laws trump any common law privilege, because there was no “clear” statutory language to that effect:

The ultimate question then is whether the federal immigration statute, which is silent on this issue, incorporates the common law privilege, here applicable to the courts of New York. Plaintiffs argue that it does, while defendants . . . argue that the [Immigration and Nationality Act] preempted and therefore invalidated any potential common law privilege under the law of New York State.

There is a general presumption in favor of plaintiffs’ position . . . . [T]he Supreme Court has . . . explained that courts should interpret federal statutes not to “alter the usual constitutional balance between the States and the Federal Government” unless Congress’s “intention to do so” is “unmistakably clear in the language of the statute.”. . . .

In the instant case, this Court . . . finds no indication in the language of the statute that the “clear and manifest purpose of Congress” was to abrogate the relevant state common law, and consequently holds that the statute incorporates the privilege.