OPINION: The Supremacy Clause does not give the federal government the authority to commit crimes

This is a pivotal time for our state and country. As the Bernalillo County district attorney, it is my responsibility and duty to prosecute anyone who breaks the laws of New Mexico. Contrary to a recent op-ed, no one is above the law; not the president of the United States or federal agents who act outside the scope of their duties. Given what we are seeing in Minneapolis and across the country, it is dangerous and a complete distortion of the law for anyone to suggest that federal agents have complete immunity for their unlawful actions against our communities.

It is a basic tenet of federalism that the states retain their general authority to prosecute those who break state laws. The Supremacy Clause does not unilaterally give the federal government immunity from those state laws. Federal courts have recognized “... the Supremacy Clause was not intended to be a shield for ‘anything goes’ conduct by federal law enforcement officers.” The clause merely limits state prosecution against federal agents who are acting within the scope of their lawful, legal authority. Nothing in the Supremacy Clause, the U.S. Constitution or any federal statute vests federal agents with absolute immunity. In fact, the law recognizes that after federal courts have reviewed and determined federal agents have acted unreasonably outside the scope of their lawful authority, they are subject to state prosecution for their unlawful actions.

I am mindful of the very important and dangerous job that law enforcement officers have to protect our community. As I have repeatedly stated, I fully support our law enforcement officers who take up this dangerous calling. However, I will never abdicate my responsibility to prosecute anyone who acts outside the scope of their authority and breaks the law. That was my message to Immigration and Customs Enforcement that I reiterate now, to all federal agents and law enforcement officers operating in Bernalillo County and to the citizens who are terrified by what they are witnessing: If any federal agent takes action without a judicial warrant, probable cause or reasonable suspicion, they are violating the 4th Amendment of the federal Constitution, and are no longer protected by the Supremacy Clause. If that action violates applicable state laws, I will act accordingly.

The checks and balances between the states and the federal government are integral to the proper functioning of our form of government. Our Founding Fathers recognized in the 10th Amendment that the states and our citizens have inherent rights and authority to check the federal government’s overreach. Throughout our nation’s history, we have seen this balancing act play out: the Civil Rights movement, the Civil War and Alien and Sedition Acts. Even today, countless federal courts have recognized that right in rulings against the Trump administration’s overreach. When that system works and the federal government and states do their respective jobs, our citizens can take comfort and trust that their constitutional rights are protected. State leaders have taken an oath and have a constitutional responsibility to stand up, speak out and take action as we witness the potential degradation of our democracy.

I am proud to represent Bernalillo County and to stand up for the people of New Mexico. I have been fighting to protect our constitutional rights before state and federal courts for over 30 years. This is more than just politics. It is my duty. The people of New Mexico deserve to live their lives without the fear of federal agents unlawfully searching and detaining their children and neighbors.

Sam Bregman is the Bernalillo County district attorney and a New Mexico Democratic gubernatorial candidate.