A Federalism Bottleneck?
The Subnational Levers Constraining ICE
Across America, officials in small government offices are reviewing the floor plans of potential detention facilities, drafting bills designed to keep federal agents out of parts of state-owned property, and crafting executive orders to rescind previously agreed-upon arrangements between their state and ICE. These actions reveal that what is often described as a strictly federal operation is in fact a sprawling, contingent system shaped as much by federalism as by federal law.
The Global Supply Chain Model
Recently, I wrote a piece called “Private Chains, Public Harm” that illustrated how ICE is dependent on global supply networks often involving foreign-owned firms. The global supply chain underpinning ICE’s operations operates at the intersection of public authority and market forces: it is structured in part by national oversight through DHS and in part by private, profit-driven incentives.
That hybrid structure expands the government’s operational reach and flexibility, but it also creates dependencies. When the United States relies on foreign firms to carry out controversial enforcement policies, while simultaneously straining relations with those firms’ home governments through economic pressure or military threats, it exposes itself to political and economic backlash.
However, this dependence is not confined to private firms. It holds true for subnational governments.
The Limits of Federal Budgetary Power
The 3,000-agent ICE operation in Minnesota that began in November and led to the detention of 4,000 undocumented immigrants and the deaths of two American citizens pushed Congress to rein in ICE through a series of demands that are driving the current partial government shutdown of DHS:
DHS agents cannot enter private property without a judicial warrant.
Immigration enforcement agents are prohibited from wearing masks or face coverings
DHS agents must clearly identify themselves by agency, badge number, and last name, including verbal identification upon request.
Federal funds may not be used for enforcement operations near schools, churches, polling stations, or medical facilities.
Prohibit racial profiling.
Establish a standardized use-of-force policy and require additional training.
Ensure state and local jurisdictions can investigate and prosecute potential criminal conduct or excessive force.
Require all detention facilities to meet uniform baseline standards.
Mandate body cameras.
Standardize uniforms and equipment to align with civil enforcement norms.
These strategies rely on two traditional congressional tools: statutory reform and budgetary leverage. Both presume that ICE’s enforcement capacity flows primarily from federal authority and federal funding.
Yet ICE’s operations are not sustained by appropriations alone. While prior funding, including the more than $70 billion allocated last summer with the passage of the One Big Beautiful Bill Act, has ensured the agency’s continued functioning, these resources are embedded in private contracts and intergovernmental agreements.
Much of this funding is available through 2029. Additional funding for DHS explicitly authorizes support and reimbursement for state and local participation in homeland security efforts. This includes reimbursing state and local agencies for their involvement in ending the presence of criminal organizations, combating human smuggling and trafficking networks, and supporting immigration enforcement, further embedding local actors into federal operational networks.
State and local governments may enter into 287(g) agreements with ICE for several reasons. Beyond financial incentives, these agreements enhance local law enforcement capacity by deputizing officers to carry out certain federal immigration enforcement functions, such as identifying and processing noncitizens. They can also serve as a political signal, demonstrating a jurisdiction’s commitment to cooperating with federal authorities. Finally, 287(g) participation allows local agencies to influence enforcement priorities and procedures under federal supervision, giving them some control over how immigration enforcement intersects with local policing.
In this way, ICE’s capacity is co-produced. Federal power may authorize enforcement, but it does not execute it alone. Recognizing this distributed architecture shifts the analytic frame: ICE depends on supply chains, subcontractors, and cooperative agreements that extend well beyond Washington.
This dependency creates chokepoints, and these chokepoints are often located at the state and local levels.
Federalism as a Choke Point
Looking to Congress alone to discipline ICE assumes that its operational capacity is wholly centralized. However, American federalism distributes not only legal authority; it distributes the material and administrative conditions under which policy is executed. States are not powerless simply because they are smaller or lack national jurisdiction. It is their relative autonomy makes them both powerful partners as well as potential points of weakness in a multi-level network.
This structural feature was recognized in the earliest days of the republic. In Federalist Paper No. 46, James Madison remarked that if states sought to resist federal encroachments, they would possess “the advantage in the means of defeating such encroachments,” because unpopular federal measures would still depend on execution “by means on the spot and depending on the State alone.” Madison’s observation was not merely rhetorical. It described the reality of federalism and policy goals: even when federal authority is supreme in law – which it is as per Article VI, Clause 2 of the U.S. Constitution – many of the federal government’s aims depend on subnational infrastructure in practice.
That remains true today.
Federalism therefore creates both opportunities for cooperation as well as the structural leverage necessary for states to undermine federal government objectives.
Consider New Jersey Governor Mikie Sherrill signing an executive order prohibiting immigration officers from accessing non-public portions of state-owned property without a judicial warrant and barring the use of state property as staging grounds for enforcement operations. The order does not invalidate federal authority. It changes the conditions under which that authority is exercised.
Section 287(g) agreements
States and local governments cannot nullify federal immigration law, nor can they directly cancel federal contracts. But they can regulate access to state-owned facilities, withdraw personnel, restrict the use of state and local resources, and terminate cooperative agreements. Each of these actions alters the terrain on which enforcement occurs. A substantial share of the intergovernmental cooperation concerning ICE occurs through section 287(g) agreements between the federal government and state and local actors.
Established with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, section 287(g) agreements allow state and local law enforcement agencies to enter into formal agreements with ICE:
The Jail Enforcement Model focuses on screening and processing noncitizens who are potentially removable and who have been arrested on criminal charges by state or local law enforcement.
The Task Force Model operates as a force multiplier, enabling state and local officers to exercise limited immigration authority during routine policing activities under the supervision of ICE.
The Tribal Task Force Model similarly extends limited immigration enforcement authority to tribal law enforcement agencies, pursuant to Title 25 U.S.C. § 2804, with ICE oversight.
The Warrant Service Officer program authorizes ICE to train and deputize state and local officers to serve and execute administrative immigration warrants within their correctional facilities.
These agreements, whether jail enforcement, task force, tribal task force, or warrant service officer models, effectively expand federal capacity by embedding immigration authority within existing local law enforcement structures. They expand operational reach without adding more federal personnel.
According to the ICE website:
“As of February 20, 2026 4:22 pm ICE has signed 1,427 Memorandums of Agreement for 287(g) programs covering 40 states. These include [Jail Enforcement Model] agreements with 152 law enforcement agencies in 32 states, 287(g) [Warrant Service Officer] agreements with 465 law enforcement agencies in 35 states, and 287(g) [Task Force Model] agreements with 809 agencies in 35 states.
In addition, there are 12 pending 287(g) applications that include 10 task force model agreements and 2 warrant service officer agreements.
Because this capacity is delegated, it can also be withdrawn. Under the Trump administration, 287(g) agreements have increased. Yet state and local law enforcement retain authority over whether their own agencies participate.
The state-local relationship can block or coerce 287(g) agreements. Some states like Florida have taken a firmly cooperative stance on 287(g) agreements. In 2022, the state enacted CS/SB 1808, requiring “each law enforcement agency operating a county detention facility to enter into a specified agreement with the United States Immigration and Customs Enforcement to assist with immigration enforcement.” This appears to require county jail operators to participate in 287(g) models.
Conversely, in Virginia, Governor Abigail Spanberger signed an executive order enabling her administration to remove Virginia State Police from a previously established 287(g) agreement, thereby retracting state-level participation in federal enforcement efforts, and joining other Democratic-run states that have implemented bans.
When states withdraw support, end jail contracts, or limit information sharing, ICE retains formal authority but loses operational efficiency. Its agents must locate individuals without local data, transport detainees longer distances, and navigate unfamiliar communities without the guidance of local law enforcement.
Local Governments in Multi-level Governance
Many of the agencies entering into 287(g) agreements are at the county or city level. Local governments add another layer of institutional complexity. In American constitutional doctrine, local governments are often described as “creatures of the state,” meaning their authority ultimately derives from state law. Maryland demonstrates how states can structure this layered authority. For instance, Governor Wes Moore is set to sign legislation prohibiting both state and local agencies from entering into 287(g) agreements and terminating existing ones.
In many jurisdictions, local governments exercise substantial discretion over policing practices, facility access, and contractual relationships. That discretion can either reinforce or complicate federal enforcement. Where these local agencies are granted greater autonomy, many are using it to weaken the interdependent institutional relationships that ICE depends on for enforcement.
After Maryland took steps to end 287(g) agreements in the state, local governments including Baltimore, Howard, Prince George’s, and Montgomery County, have also moved to adopt legislation creating uniform rules to limit how local law enforcement engages with ICE.
Additionally, according to reports from Sludge, a nonprofit project that tracks money in politics, Hartford, Connecticut is ending an ICE-related contract involving the Hartford Parking Authority. In Philadelphia, city council members have sought to bar municipal agencies from collaborating with ICE. These measures do not somehow overturn federal immigration law, but they do adjust access to local resources and personnel, thereby affecting how enforcement unfolds in practice.
Across these examples, the pattern is consistent. Federal immigration enforcement is not a self-contained hierarchy executing policy from Washington downward. It is a layered system that depends on cooperation embedded within a federal structure. Federalism creates multiple points at which enforcement can be enabled, reshaped, or constrained.
Rejecting or Reversing 287(g) Agreements is a Real Way to Limit DHS
The debates surrounding ICE are often framed as solely battles over law, funding, or presidential authority, but enforcement is produced through the discretionary actions of bureaucracies embedded across the federal system. Just as global supply chains expose material dependencies beyond U.S. borders, American federalism embeds domestic dependencies that shape whether federal policies function in practice.
This means state and local governments are not passive implementers but active actors. For critics of ICE, this institutional reality broadens the terrain of accountability making mayors, city councillors, state legislators, and governors potential focal points of public protest. While elected officials have occasionally used federal funding as leverage over states, a pattern that has occurred across administrations, the reputational risks associated with local involvement in immigration enforcement mean that public organizations may seek to distance themselves from ICE operations, particularly as these programs become increasingly toxic.
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Really fine work on mapping the dimensions of this part of the hollow state.