Federalism is a powerful weapon for state and local governments against an anti-democratic agenda in Washington. Creeping authoritarianism within State Houses, however, is an entirely different matter requiring a new set of standards and protocols. Perhaps an unlikely location for a contentious fight to save citizens from the advancing tyranny of state government, Maine is playing host to just such a battle, one with huge implications for resistance nationwide.
Though the Pine Tree State is still one of the whitest in the country, it has welcomed increasingly large numbers of immigrants to its cities over the past few decades; Portland and Lewiston in particular now count diverse populations among their ranks. Immigrants (classified as foreign-born residents) currently make up around 3 percent of the state’s population, and while most of those are from Canada, many more have arrived from further afield in recent years. Some migrants come to work in the agriculture and seafood industries in more remote areas—Milbridge, a tiny town in far-flung Washington County reliant on lobsters and blueberries, is 6 percent Latino. Farmers all over the state welcome temporary workers on visas to help with the harvest each year, and these workers form a vital component of the economy in a state where the workforce is largely aging out.
Though Maine benefits from its new residents, it hasn’t avoided the scourge of the nationwide immigration backlash, particularly in the wake of President Trump’s election. However, Maine has dealt with these issues for far longer than that. In November 2010, it infamously elected as governor a man who has boasted of being “Donald Trump before Donald Trump” with just under 40 percent of the vote, due to the presence of a third-party candidate and the lack of a runoff system. Paul LePage, now a staple amongst political comedians and a target of ridicule on editorial pages across the country, has referred to all of Maine’s asylum seekers as “illegals” and warned of impending conflict with nonwhite drug dealers purportedly racing up the Maine Turnpike in waves from New York and Connecticut. Most dangerously of all, LePage is waging a war against Maine’s local law enforcement over a legal rule that the U.S. Supreme Court has yet to consider: the immigration detainer request.
The Department of Homeland Security allows Immigrations and Customs Enforcement (ICE) to request that local law enforcement agencies detain criminals who are suspected of immigration infractions past the end of their sentences, theoretically to allow ICE enough time to secure the individual in its own custody. Since immigration was ruled to be a civil rather than a criminal matter by the Supreme Court, targets of ICE’s detainers have sued in various courts on the basis of a violation of their Fourth Amendment rights against unreasonable seizures, arguing that they are being held without probable cause of a crime. In a crucial case out of a federal district court in Texas, a distinction was drawn between the authority of federal authorities to initiate immigration arrests without a warrant, and that of state and local agencies, which are not permitted to do so. An arrest made by a local agency thus cannot be subject to a federal ICE detainer. This places local law enforcement in the unenviable position of having to either refuse to enforce DHS regulations or possibly be held legally liable for a constitutional transgression.
Governor LePage appears not to care. Earlier this year, Sheriffs Kevin Joyce, William King, and Wayne Gallant of Cumberland, York and Oxford counties respectively raised concerns about the constitutionality of immigration detainers in the wake of a series of ICE raids in Portland. On a radio show and then in an official letter to county law enforcement, LePage stated that he would fire sheriffs who refused to cooperate with federal immigration policy, invoking his statutory authority to issue “orders relating to law enforcement.” He met with the sheriffs last month to clarify his position, with no real progress made. They maintained that their objective was not to circumvent ICE, and that the federal authorities were being contacted in cases of an inmate with suspect immigration status. LePage refused to back down from any of his demands.
While the tension seems to have dissipated and LePage has not followed through as of yet on his threat to fire the sheriffs, the dispute raises an important question: what are the citizens of a state to do if a governor summarily dismisses legitimately elected law enforcement officials? LePage is technically within his rights to order a sheriff to take a particular action, but in this case, the sheriffs have the support of the courts in their convictions that obeying the governor amounts to a violation of the Constitution. Cumberland County residents elected Kevin Joyce to protect and uphold the law and he is now under threat of dismissal for doing so. A classically populist leader with an anti-pluralist attitude and an eternal worldview, stretching the parameters of the law to justify and legitimate purging those with whom he disagrees, LePage is forcing the state and the rest of the nation to confront the danger of authoritarianism at the state level.
Maine has already taken a few steps—last year, the state’s voters approved a transition to ranked-choice voting, a system that likely would have prevented both of LePage’s electoral victories. Portland, the city in Maine most vulnerable to broken-windows immigration policies, does not allow any municipal workers, including police, to ask about immigration status except in cases where there is probable cause that a felony has occurred. Maine’s Attorney General, Janet Mills, refused to represent LePage in his support for President Trump’s executive orders on immigration, prevailing in court last month when LePage demanded that her office be required to pay for alternative legal counsel. And Joyce, King and Gallant have of course already burnished their anti-authoritarian credentials, refusing to blink in their staring contest with the governor. Maine’s voters and officials, at both the municipal and state levels, are writing the playbook for a new resistance, leading the rest of the nation in the campaign to keep democracy running smoothly beyond Washington. But LePage is not one of a kind, and other states and cities, who will inevitably face homegrown “baby Trumps,” would do well to look down east for possible answers to their own dilemmas.
Photo by Paul VanDerWerf (CC BY 2.0 License)